Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Eastern Small-Footed Bat and the Northern Long-Eared Bat as Threatened or Endangered, 38095-38106 [2011-16344]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 76, Number 125 (Wednesday, June 29, 2011)]
[Proposed Rules]
[Pages 38095-38106]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16344]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2011-0024; MO 92210-0-0008]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the Eastern Small-Footed Bat and the Northern Long-
Eared Bat as Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding and initiation of status review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition (Petition) to list the eastern small-
footed bat (Myotis leibii) and the northern long-eared bat (Myotis 
septentrionalis) as endangered or threatened under the Endangered 
Species Act of 1973, as amended (Act), and designate critical habitat. 
Based on our review, we find that the Petition presents substantial 
scientific or commercial information indicating that listing of the 
eastern small-footed bat and the northern long-eared bat may be 
warranted. Therefore, with the publication of this notice, we are 
initiating a review of the status of these species to determine if 
listing the eastern small-footed bat or the northern long-eared bat, or 
both species is warranted. To ensure that this status review is 
comprehensive, we are requesting scientific and commercial data and 
other information regarding these species. Based on the status review, 
we will issue a 12-month finding on the Petition, which will address 
whether the petitioned action is warranted, as provided in the Act.

DATES: To allow us adequate time to conduct this review, we request 
that we receive information on or before August 29, 2011. Please note 
that if you are using the Federal eRulemaking Portal (see ADDRESSES), 
the deadline for submitting an electronic comment is Eastern Standard 
Time on this date. After August 29, 2011, you must submit information 
directly to the Field Office (see FOR FURTHER INFORMATION CONTACT). 
Please note that we might not be able to address or incorporate 
information that we receive after the above requested date.

ADDRESSES: You may submit comments by one of the following methods:
    Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Keyword box, enter Docket No. FWS-R5-ES-
2011-0024, which is the docket number for this finding. Follow the 
instructions for submitting comments on this docket.
    By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R5-ES-2011-0024; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We will not accept e-mails or faxes. We will post all information 
we receive on https://www.regulations.gov. This generally means that we 
will post any personal information you provide us, See Request for 
Information below for more information.

[[Page 38096]]


FOR FURTHER INFORMATION CONTACT: Clint Riley, Field Supervisor, 
Pennsylvania Ecological Services Field Office, 315 South Allen Street, 
Suite 322, State College, PA 16801; by telephone at 814-234-4090, or by 
facsimile at 814-234-0748. If you use a telecommunications device for 
the deaf (TDD), please call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Request for Information

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to promptly review the status of the species (status review). 
For the status review to be complete and based on the best available 
scientific and commercial information, we request information on the 
eastern small-footed bat and northern long-eared bat from governmental 
agencies, Native American Tribes, the scientific community, industry, 
and any other interested parties. We seek information on:
    (1) The species' biology, range, and population trends, including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act of 1973, as 
amended (16 U.S.C. 1531 et seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (3) Species-specific population data (e.g., hibernaculum counts) 
pre- and post-exposure to white-nose syndrome (WNS).
    If, after the status review, we determine that listing the eastern 
small-footed bat and or the northern long-eared bat is warranted, we 
will propose critical habitat (see definition in section 3(5)(A) of the 
Act), under section 4 of the Act, to the maximum extent prudent and 
determinable at the time we propose to list the species. Therefore, 
within the geographical range currently occupied by the eastern small-
footed bat and northern long-eared bat, we request data and information 
on:
    (1) What may constitute ``physical or biological features essential 
to the conservation of the species'';
    (2) Where these features are currently found; and
    (3) Whether any of these features may require special management 
considerations or protection.
    In addition, we request data and information on ``specific areas 
outside the geographical area occupied by the species'' that are 
``essential to the conservation of the species.'' Please provide 
specific comments and information as to what, if any, critical habitat 
you think we should propose for designation if the species is proposed 
for listing, and why such habitat meets the requirements of section 4 
of the Act.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Submissions merely stating support for or opposition to the action 
under consideration without providing supporting information, although 
noted, will not be considered in making a determination. Section 
4(b)(1)(A) of the Act directs that determinations as to whether any 
species is an endangered or threatened species must be made ``solely on 
the basis of the best scientific and commercial data available.''
    You may submit your information concerning this status review by 
one of the methods listed in the ADDRESSES section. If you submit 
information via https://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the 
Web site. If you submit a hardcopy that includes personal identifying 
information, you may request at the top of your document that we 
withhold this personal identifying information from public review. 
However, we cannot guarantee that we will be able to do so. We will 
post all hardcopy submissions on https://www.regulations.gov.
    Information and supporting documentation that we received and used 
in preparing this finding is available for you to review at https://www.regulations.gov, or you may make an appointment during normal 
business hours at the Service's Pennsylvania Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

Background

    Section 4(b)(3)(A) of the Act (16 U.S.C. 1533(b)(3)(A)) requires 
that we make a finding on whether a petition to list, delist, or 
reclassify a species presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted. We 
are to base this finding on information provided in the petition, 
supporting information submitted with the petition, and information 
otherwise available in our files. To the maximum extent practicable, we 
are to make this finding within 90 days of our receipt of the petition 
and publish our notice of the finding promptly in the Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information was presented, we are required to 
promptly conduct a species status review, which we subsequently 
summarize in our 12-month finding.

Petition History

    We received a Petition dated January 21, 2010, from Mollie 
Matteson, Center for Biological Diversity, requesting that the eastern 
small-footed bat and northern long-eared bat be listed as threatened or 
endangered and that critical habitat be designated under the Act. The 
Petition clearly identified itself as such and included the requisite 
identification information for the petitioner, as required by 50 CFR 
424.14(a). In a February 19, 2010, letter to the petitioner, we 
acknowledged receipt of the Petition and stated that we would review 
the petitioned request for listing and inform the petitioner of our 
determination upon completion of our review. On June 23, 2010, we 
received a notice of intent to sue (NOI) from the petitioner for 
failing to make a timely 90-day finding. In a letter dated July 20, 
2010, we responded to the NOI, stating that we had assigned lead for 
the two bat species to the Services' Midwest and Northeast Regions, and 
that although completing the 90-day finding within the 90-day receipt 
of Petition was not practicable, the Regions were recently allocated 
funding to work on the findings and had begun review of the Petition. 
This finding addresses the Petition to list the eastern small-footed 
bat and the northern long-eared bat.

[[Page 38097]]

Previous Federal Actions

    On September 18, 1985 (50 FR 37958), November 21, 1991 (56 FR 
58804), and November 15, 1994 (59 FR 58982), the Service issued Notices 
of Review identifying the eastern small-footed bat as a ``category-2 
candidate'' for listing under the Act. However, on December 5, 1996 (50 
FR 64481), the Service discontinued the practice of maintaining a list 
of species regarded as ``category-2 candidates,'' that is, taxa for 
which the Service has insufficient information to support issuance of a 
proposed listing rule. To date, no Federal actions have been taken with 
regard to the northern long-eared bat.

Species Information

Eastern Small-Footed Bat
    The eastern small-footed bat (Myotis leibii), formerly known as 
Leib's bat, is a member of the order Chiroptera and family 
Vespertilionidae. It is one of the smallest North American bats, often 
weighing as little as 3 to 4 grams (g) (0.11 to 0.14 ounces (oz)) 
(Harvey and Redman 2003, p. 10). Total body length is between 73 and 85 
millimeters (mm) (2.87 and 3.35 inches (in)), and wingspan is between 
212 and 248 mm (8.35 and 9.76 in) (Barbour and Davis 1969, p. 103; 
Erdle and Hobson 2001, p. 6; Amelon and Burhans 2006, p. 57). Defining 
characteristics include very small feet, measuring less than 8 mm (0.31 
in) in adults, and a black facial mask and black ears that contrast 
with the bat's light-tan-to-dark-brown back fur (Barbour and Davis 
1969, p. 103; Erdle and Hobson 2001, p. 6).
    The eastern small-footed bat occurs from eastern Canada and New 
England south to Alabama and Georgia, and west to Oklahoma (Barbour and 
Davis 1969, p. 103). The species' range includes: Alabama, Arkansas, 
Connecticut, Delaware, Georgia, Illinois, Indiana, Kentucky, Maine, 
Maryland, Massachusetts, Mississippi, Missouri, New Hampshire, New 
Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode 
Island, South Carolina, Tennessee, Vermont, Virginia, and West Virginia 
in the United States, and Ontario and Quebec in Canada. Eastern small-
footed bats are considered rare because of their patchy distribution 
and generally low population numbers (Barbour and Davis 1969, p. 103). 
This species is most often detected during hibernation. About 125 
hibernacula have been identified across the species' range, although 
most contain just a few individuals (Amelon and Burhans 2006, p. 61). 
Most documented occurrences of the species have been in New York, 
Pennsylvania, West Virginia, and Virginia (Amelon and Burhans 2006, p. 
59). The eastern small-footed bat is State-listed as threatened in 
Pennsylvania because of an apparent population decline between the 
1930s and the late 1970s (Felbaum et al. 1995, p. 24). From 1939 to 
1944, more than 100 caves were surveyed in Pennsylvania and West 
Virginia, and out of these, eastern small-footed bats were observed at 
only 7 sites and totaled 363 individuals. In 1978 and 1979, the same 
seven caves were surveyed again and no eastern small-footed bats were 
observed (Felbaum et al. 1995, p. 24). Eastern small-footed bats are 
known to be susceptible to White-Nose Syndrome (WNS), and population 
declines (100 percent) were observed during surveys at Hailes Cave, New 
York, from 2005 to 2008, and these declines may be attributed to WNS 
(Hicks et al. 2008, p. 20).
    Eastern small-footed bats overwinter in hibernacula that include 
caves and abandoned mines. In these hibernacula, they prefer locations 
close to the cave or mine entrance, where humidity is low and 
temperature fluctuations may be high relative to more interior areas 
(Barbour and Davis 1969, p. 104; Best and Jennings 1997, p. 3). 
Individuals often hibernate solitarily and have been found hibernating 
in rock crevices in cave or mine floors and beneath rocks within 
hibernacula (Barbour and Davis 1969, p. 104). Eastern small-footed bats 
have been observed hibernating in caves with big brown bats (Eptesicus 
fuscus), little brown bats (Myotis lucifugus), northern long-eared bats 
(Myotis septentrionalis), Indiana bats (Myotis sodalis), and tri-
colored bats (Perimyotis subflavus). Male and female eastern small-
footed bats inhabit the same hibernacula (Hitchcock 1965, pp. 6-8; Best 
and Jennings 1997, p. 3). Like most bat species, eastern small-footed 
bats exhibit high site fidelity to hibernacula, with individuals 
returning to the same site year after year (Gates et al. 1984, p. 166). 
Compared to other North American bat species, eastern small-footed bats 
are among the last to enter hibernacula and the first to emerge in the 
spring. Hibernation is approximately mid-November to March (Barbour and 
Davis 1969, p. 104).
    In the summer months, eastern small-footed bats typically roost in 
talus (a slope of accumulated rock debris) areas associated with rocky 
ridge-tops, but they have also been found roosting on buildings and 
bridges and behind loose bark on trees (Barbour and Davis 1969, p. 103; 
MacGregor and Kiser 1998, p. 175; Amelon and Burhans 2006, p. 58; 
Chenger 2008, p. 10; Johnson et al. 2008, p. 29; Johnson and Gates 
2008, p. 456). Roost sites may be at ground level in talus slopes, or 
in rock outcrops within shale barrens (Johnson et al. 2008, p. 29; 
Johnson and Gates 2008, p. 456). Both males and females change roost 
sites often, even daily; however, the reason for this frequent 
relocation is not known (Johnson et al. 2008, p. 29). Available data 
regarding the eastern small-footed bat suggest that females of this 
species form small colonies, with males roosting singly or in small 
groups (Erdle and Hobson 2001, p. 10). Eastern small-footed bats are 
known to migrate regionally. Three female eastern small-footed bats 
migrated 0.1 to 1.1 kilometer (km) (0.06 to 0.68 miles (mi)) from their 
winter hibernacula to rock outcrops within shale barren habitat 
(Johnson and Gates 2008, p. 456). The distance traveled is probably 
influenced by the availability of hibernacula and roosting sites across 
the landscape (Johnson and Gates 2008, p. 457).
    Eastern small-footed bats are nocturnal foragers and primarily 
forage over streams, ponds, or other water bodies where concentrations 
of nocturnal insects are high (MacGregor and Kiser 1998, p. 175). 
Chenger (2008, pp. 10, 69-71) observed a female eastern small-footed 
bat foraging on three consecutive nights in June in a relatively small 
logged area on a hilltop, approximately 3.2 km (1.99 mi) from her 
talus-field diurnal (daytime) roost. He observed a second female 
eastern small-footed bat foraging in a predominantly forested area 
within 0.8 km (0.50 mi) of her talus-field diurnal roost. Eastern 
small-footed bats are dietary generalists and feed primarily on soft-
bodied prey by hawking (capturing prey while in flight) and gleaning 
(capture of prey on any kind of substrate, or surface) (Moosman et al. 
2007, p. 355 and p. 358).
    Eastern small-footed bats are thought to be similar to sympatric 
Myotis that breed in the fall; spermatozoa are stored in the uterus of 
hibernating females until spring ovulation, and a single pup is born in 
May or June (Barbour and Davis 1969, p. 104; Amelon and Burhans 2006, 
p. 58). Adult longevity is estimated to be up to 12 years in the wild 
(Hitchcock 1965, p. 11). Mean annual survival rates are significantly 
lower for females than for males, 42.1 and 75.7 percent, respectively 
(Hitchcock et al., 1984, p. 128). The lower rate of survival of females 
may be a result of a combination of factors: The greater demands of 
reproduction on females; the higher metabolic rates and longer 
sustained activity during the day in summer (i.e., less time spent in 
daytime lethargy); and the greater exposure to possible disease-
carrying

[[Page 38098]]

parasites in maternity colonies (Hitchcock et al. 1984, p. 127). Low 
survivorship and an evolutionary inability to compensate with a larger 
litter size may explain why eastern small-footed bats are generally 
uncommon (Hitchcock et al. 1984, p. 129).
Northern Long-Eared Bat
    The northern long-eared bat (Myotis septentrionalis) is a member of 
the order Chiroptera and family Vespertilionidae. The northern long-
eared bat was considered a subspecies of Keen's long-eared Myotis 
(Myotis keenii), but was recognized as a distinct species by van Zyll 
de Jong in 1979 (1979, p. 993, as cited in Caceres and Pybus 1997, p. 
1); Nagorsen and Brigham (1993, p. 87); Whitaker and Mumford (2009, p. 
207); and Simmons (2005, p. 516). No subspecies have been described for 
this species (Nagorsen and Brigham 1993, p. 90; Whitaker and Mumford 
2009, p. 214). Thus, we accept the characterization of the northern 
long-eared bat as a distinct species of Myotis.
    The northern long-eared bat is a medium-sized bat species with an 
average adult body weight of 5 to 8 g (0.18 to 0.28 oz) and average 
body length of 77 to 95 mm (3.03 to 3.74 in) (Caceres and Barclay 2000, 
p. 1). The northern long-eared bat is a relatively long-lived species, 
with ages up to 19 years recorded in the wild (Caceres and Pybus 1997, 
p. 4). It has medium to dark brown fur on its back, dark brown ears and 
wing membranes, and tawny-to-pale-brown fur on the ventral side 
(Nagorsen and Brigham 1993, p. 87; Whitaker and Mumford 2009, p. 207). 
This species is distinguished from other Myotis species by its large 
ears (average 17 mm (0.67 in), Whitaker and Mumford 2009, p. 207) that, 
when laid forward, extend (less than 5 mm (0.20 in)) beyond the muzzle 
(Caceres and Barclay 2000, p. 1). The tragus (a thin, cartilaginous 
structure attached to the base of the ear) is long and pointed (average 
9 mm (0.35 in), Whitaker and Mumford 2009, p. 207), and often curved 
(Nagorsen and Brigham 1993, p. 87; Whitaker and Mumford 2009, p. 207). 
Females tend to be slightly larger and heavier than males (Caceres and 
Pybus 1997, p. 3).
    The northern long-eared bat ranges across much of the eastern and 
north central United States, and all Canadian provinces west to the 
southern Northwest Territories and eastern British Columbia (Nagorsen 
and Brigham 1993, p. 89; Caceres and Pybus 1997, p. 1). However, in all 
these places, the species is patchily distributed and rarely found in 
large numbers (Barbour and Davis 1969, p. 77). The species' range 
includes: Alabama, Arkansas, Connecticut, Delaware, the District of 
Columbia, Florida, 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, and Wisconsin (Center for Biological Diversity 
Petition (Petition, p. 6)). The petitioner notes that a small number of 
sightings have also been reported in Wyoming (Petition, p. 6). The 
species is considered rare in the northwestern part of its range 
(Nagorsen and Brigham 1993, p. 90; Caceres and Pybus 1997, p. 2) and in 
some southern States (Crnkovic 2003, p. 715).
    Although summer roost habitat is defined variably across the 
species' range, its presence is generally correlated with old-growth 
forests composed of trees 100 years old or older (Caceres and Pybus 
1997, p. 2; Petition, p. 7). The species is reliant on intact interior 
forest habitat, with low edge-to-interior ratios (Yates and Muzika 
2006, p. 1245). Relevant late-successional forest features include a 
high percentage of old trees, uneven forest structure (resulting in 
multilayered vertical structure), single and multiple tree-fall gaps, 
standing snags, and woody debris (Krusic et al. 1996, p. 631; Leverett 
2001, pp. 59-65). These late-successional forest characteristics may be 
favored for several reasons, including the large number of partially 
dead or decaying trees that the species uses for breeding, summer day 
roosting, and foraging (Krusic et al. 1996, p. 631; Caceres and Pybus 
1997, p. 2; Waldien et al. 2000, pp. 793-794). Males typically roost 
singly and prefer coniferous trees in conifer-dominated stands, while 
females roost singly or in small groups, preferring shade-tolerant 
deciduous trees of mid-stage decay in mature stands (Broders and Forbes 
2004, p. 606). Females may form small maternity colonies behind 
exfoliating bark, in tree snags, and in stumps, as well as in bat 
houses and behind building shutters (Waldien et al. 2000, pp. 793-794; 
Whitaker and Mumford 2009, p. 209). Females exhibit a high philopatry 
(tendency to return) to their natal sites (Arnold 2007, p. 375).
    While the northern long-eared bat is not a migratory species, 
movements of the species between summer roost and winter hibernacula 
covering up to 56 km (34.8 mi) have been documented (Nagorsen and 
Brigham, 1993 p. 88). Northern long-eared bats may hibernate solitarily 
or in multispecies hibernacula, and are commonly found in caves or 
inactive mines, although they generally constitute less than 25 percent 
of the total number of individuals present in multispecies hibernacula 
(Barbour and Davis 1969, p. 77; Caceres and Pybus 1997, p. 1). The 
species appears to favor small cracks or crevices in cave ceilings, 
preferring cooler, higher humidity areas for hibernation than do many 
other Myotis species (Barbour and Davis 1969, p. 77; Whitaker and 
Mumford 2009, pp. 209-210). Hibernation during the winter months 
conserves energy by precluding the need for maintaining high body 
temperature when food is unavailable. To increase energy savings, 
individuals enter a state of torpor (a state of slowed body function 
used to conserve energy), where internal body temperature approaches 
ambient temperature, metabolic rates are significantly lowered, and all 
unnecessary movement is avoided (Thomas et al. 1990, p. 475; Thomas and 
Geiser 1997, p. 585; Caceres and Pybus 1997, p. 9). However, intercave 
movements are not uncommon: During winter periods, this species is 
known to break torpor briefly and fly outside the hibernacula on warm 
winter nights (Whitaker and Mumford 2009, pp. 208-211).
    The northern long-eared bat is an opportunistic insectivore, using 
both hawking and gleaning to forage on a variety of small insects, 
including moths, flies, leafhoppers, and beetles (Nagorsen and Brigham 
1993, p. 88). The species prefers forested hillsides and ridges, 
foraging at dusk over small ponds and forest clearings under the forest 
canopy (Nagorsen and Brigham 1993, p. 88) or along streams (Whitaker 
and Mumford 2009, p. 209). A study by Caceres and Pybus (1997, p. 2) 
suggests that mature forest stands play an important role in foraging 
behavior of northern long-eared bats.
    The northern long-eared bat exhibits a delayed fertilization 
strategy, with mating taking place in late summer or early fall 
(Caceres and Pybus 1997, p. 4). The sperm is stored until the female 
emerges from hibernation in the spring, when ovulation and 
fertilization takes place. However, some individuals mate again in the 
spring (Racey 1979, p. 392 (in Racey 1982, p. 65); Racey 1982, pp. 72-
73; Petition, p. 9). Females typically bear one offspring annually 
(Caceres and Pybus 1997, p. 4; Caceres and Barclay 2000, p. 2).

[[Page 38099]]

Evaluation of Information for This Finding

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations at 50 CFR 424 set forth the procedures for adding a species 
to, reclassifying a species from endangered to threatened or from 
threatened to endangered on, or removing a species from, the Federal 
Lists of Endangered and Threatened Wildlife and Plants. A species may 
be determined to be an endangered or threatened species due to one or 
more of the five factors described in section 4(a)(1) of the Act:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    In considering what factors might constitute threats, we must look 
beyond the exposure of the species to a factor to evaluate whether the 
species may respond to the factor in a way that causes actual impacts 
to the species. If there is exposure to a factor and the species 
responds negatively, the factor may be a threat, and during the 
subsequent status review, we attempt to determine how significant a 
threat it is. The threat is significant if it contributes to the risk 
of extinction of the species such that the species may warrant listing 
as threatened or endangered as those terms are defined in the Act. 
However, the identification of factors that could impact a species 
negatively may not be sufficient to compel a finding that the 
information in the Petition and our files is substantial. The 
information must include evidence sufficient to indicate that these 
factors may act on the species to the point that the species may meet 
the definition of threatened or endangered under the Act.
    In making this 90-day finding, we evaluated whether information 
presented in the Petition and located in our files regarding threats to 
the eastern small-footed bat and northern long-eared bat is 
substantial, thereby indicating that the petitioned action may be 
warranted. Our evaluation of this information is presented below.
A. The Present or Threatened Destruction, Modification, or Curtailment 
of the Species' Habitat or Range
    The petitioner states that threats causing the present or 
threatened destruction, modification, or curtailment of eastern small-
footed bat and northern long-eared bat habitat or range include 
agricultural and residential development; logging; oil, gas, and 
mineral development; wind energy development; and mine closures.

Agricultural and Residential Development

Information Provided in the Petition
    The petitioner asserts that habitat loss, degradation, and 
fragmentation resulting from expansion of residential and agricultural 
development is a threat to eastern small-footed bat and northern long-
eared bat populations, because habitat loss, degradation, and 
fragmentation increase the risks of reproductive decline, genetic 
isolation, changes in demography, and eventual changes in distribution, 
abundance, community diversity, and population viability (Petition, p. 
14). Some of the highest rates of residential development in the 
conterminous United States are occurring in the ranges of eastern 
small-footed bat and northern long-eared bat (Brown et al. 2005, p. 
1856). As residential development increases, habitat fragmentation and 
other anthropogenic elements increase, causing landscape-level effects 
(Smith and Wachob 2006, p. 437). As habitat patches are fragmented, the 
proportion of edge habitat (zone where adjacent habitat types meet) 
increases, which has been correlated with reduced occupancy of northern 
long-eared bats in forested habitat (Yates and Muzika 2006, p. 1243). 
The petitioner states that reduced connectivity between roosting and 
foraging habitats may increase the bats' energy expenditures and 
contribute to local population declines (Petition, p. 14). The 
petitioner states that industrial agriculture (characterized by large-
scale monocropping and the use of abundant pesticides, fertilizers, and 
irrigation) can pollute soils and water and eradicate local insect 
populations, effectively excluding bats from their former habitats 
(Petition, p. 14).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    In general, we would expect that the loss, degradation, and 
fragmentation of eastern small-footed bat and northern long-eared bat 
habitat, particularly habitat in maternity, foraging, roosting, and 
hibernacula areas, would constitute a threat to local populations; 
however, we do not have any information in our files indicating loss of 
these habitats from residential or agricultural development. We find 
the information provided in the Petition does not present substantial 
scientific or commercial information that residential and agricultural 
development may be threats to the northern long-eared bat or the 
eastern small-footed bat. However, we will further investigate these 
activities for both the northern long-eared and eastern small-footed 
bats in our 12-month status reviews.

Logging

    The petitioner asserts that the loss of forested habitat by logging 
threatens the eastern small-footed bat and northern long-eared bat 
(Petition, pp. 14-16). Logging affects bat populations through direct 
loss of roosting and foraging habitats and changes in forest structure 
and insect distribution and abundance (Hayes and Loeb 2007, pp. 207-
235). The petitioner asserts that the most commonly employed 
silvicultural practices are incompatible with bat habitat conservation 
(Petition, p. 14). The petitioner states that there is evidence that 
northern long-eared bats prefer older forest stands because of their 
affinity for large-diameter trees and high snag density. In industrial 
forests under typical management practices, large-diameter snags may be 
absent (Wilhere 2003, p. 530). Older forests contain partially dead, 
decaying, and hollow trees and cavities that northern long-eared bats 
rely on for breeding habitat (Petition, p. 7). Large-scale commercial 
forestry within the ranges of the eastern small-footed bat and the 
northern long-eared bat is found primarily in New England's northern 
forest and in portions of the southeastern United States (Petition, p. 
15). According to the petitioner, clearcutting is standard forestry 
practice in southeastern forests, and older forest stands are rare 
(Petition, p. 15; Trani 2002, p. 20).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Mature forest stands provide important roosting and foraging 
habitat for northern long-eared bats (Caceres and Pybus 1997, p. 2). 
The felling of individual trees can cause direct mortality when 
roosting bats or maternity colonies are present. Because mature forests 
are often structurally diverse (e.g., exfoliating bark, high snag 
density), they provide more roosting opportunities for forest-dwelling 
bats than do younger forests. Even-age timber management practices 
(e.g., clearcutting, shelterwood harvests) lead to the loss, 
degradation, and fragmentation of mature forest habitat and, therefore, 
may have the potential to

[[Page 38100]]

adversely affect the northern long-eared bat. It is unclear whether 
logging is a threat to the eastern small-footed bat, since they are 
most often observed roosting in talus habitats; Chenger (2008, pp. 10, 
69-71) found an eastern small-footed bat foraging in a small logged 
area. In summary, we find the information provided in the Petition and 
other information in our files present substantial scientific or 
commercial information indicating that logging may be a threat to the 
northern long-eared bat. We will further investigate this potential 
threat for both the northern long-eared and eastern small-footed bats 
in our 12-month status reviews.

Oil, Gas, and Mineral Development

    The petitioner states that oil, gas, and mineral development, 
although localized, may pose a substantial threat to some bat 
populations, particularly in New York, Pennsylvania, Virginia, West 
Virginia, and Tennessee, where oil and gas reserves are greatest 
(Petition, p. 16). Eastern small-footed bats' reliance on loose shale, 
talus, or karst formations often found in oil-, gas-, and mineral-rich 
lands makes them especially vulnerable to habitat loss associated with 
natural resource exploitation (Amelon and Berhans 2006, p. 60). Natural 
gas extraction, particularly across the Marcellus Shale region, which 
includes large portions of New York, Pennsylvania, Ohio, and West 
Virginia, is expected to expand over the coming years. According to the 
petitioner, onsite impacts from natural gas drilling include clearing 
of forest or other habitat for the drill pad, road construction for 
access to the site, construction of containment ponds to hold waste 
(combination of water and proprietary chemicals) generated in the 
hydrofracking process (hydraulic fracturing of rock caused by 
drilling), and drilling and transport infrastructure for the extracted 
gas (Petition, pp. 16-17). Lastly, the petitioner discusses the effects 
of mountaintop removal, valley filling, and contaminant discharge 
associated with coal extraction (Petition, pp. 17-18). More than 12 
million acres in Kentucky, West Virginia, Virginia, and Tennessee are 
currently affected and, within this area, nearly 6.8 percent of 
forested habitat has been lost to mountaintop removal and valley fills 
(Petition, p. 18).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Large concentrations of gas wells and coal mines, and virtually the 
entire Marcellus Shale formation, fall within the eastern small-footed 
bat and northern long-eared bat ranges. The information provided by the 
petitioner supports the petitioner's claim that oil, gas, and mineral 
development may result in the loss or modification of eastern small-
footed bat and northern long-eared bat habitat. In particular, 
activities that impact talus areas or mature forested habitats are 
potential threats to the eastern small-footed bat and northern long-
eared bat, respectively. We find the information provided in the 
Petition presents substantial scientific or commercial information 
indicating that oil, gas, and mineral development may be a threat to 
the northern long-eared and eastern small-footed bats. We will further 
investigate these threats to habitat for both the northern long-eared 
and eastern small-footed bats in our 12-month status reviews.

Wind Energy Development

    The petitioner states wind energy development may be a threat to 
the two species through loss of habitat and direct mortality from 
turbine operation (Petition, pp. 18-19). Bats are killed in significant 
numbers by utility-scale (greater than or equal to (>=) 0.33 megawatt 
(a unit of power equal to 1 million watts (MW)) wind turbines, with the 
greatest number of fatalities occurring along forested ridgetops in the 
eastern United States (Johnson 2005, p. 46; Arnett et al. 2008, p. 63). 
Northern long-eared bat fatalities have been reported at several wind 
energy facilities, but generally constitute a small fraction of total 
mortality (Kerns and Kerlinger 2004, p. 15; Johnson 2005, p. 45). The 
petitioner asserts, however, that low numbers of the northern long-
eared bat are consistent with its relative representation in regional 
bat communities and should not be taken as an indication that this 
species is not susceptible to wind energy-related mortality (Petition, 
p. 19). There are no reports of eastern small-footed bat fatalities at 
wind energy facilities; however, mist-net surveys conducted in 
Pennsylvania revealed that this species was present within wind 
facility project areas (Capouillez and Mumma 2008, p. 19). Lastly, the 
petitioner states that because the eastern small-footed bat is 
associated with rocky ridgetop habitat, the species may be vulnerable 
to habitat loss caused by wind development in those areas (Petition, p. 
19).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Wind power development may constitute a threat to the eastern 
small-footed bat and northern long-eared bat. Eastern small-footed bats 
typically roost in talus areas which occur on ridgetops. In the 
Appalachian Mountains, these areas coincide with past, present, and 
anticipated future wind power development, exposing the species to both 
habitat loss due to project construction and the risk of mortality due 
to turbine operation. Although no mortality of eastern small-footed 
bats has been reported to date, mortality of northern long-eared bats 
has been reported (Kerns and Kerlinger 2004, p. 15; Johnson 2005, p. 
45). Forest clearing associated with turbine and road construction 
might also threaten the northern long-eared bat, particularly if it 
occurs in mature forest habitat. We find that the information provided 
in the Petition and other information in our files present substantial 
scientific or commercial information indicating the petitioned action 
may be warranted due to wind power development. We will further 
investigate this threat to habitat for both the northern long-eared and 
eastern small-footed bats in our 12-month status reviews.

Mine Closures

    The petitioner states abandoned mines serve as important habitat 
for many bat species and that although mine closures may be advisable 
for public safety, certain methods of closure can also exclude bats 
(Petition, p. 19). In a few reported instances, mines were closed when 
bats were hibernating and entire colonies were entombed (Tuttle and 
Taylor 1998, p. 8). Bat-compatible closures have been installed on 
Federal lands, but according to the petitioner, mines on non-Federal 
lands are still often closed improperly, and in some areas this may 
represent significant habitat loss to bats (Petition, p. 19).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Mine closures have the potential to cause direct mortality to 
eastern small-footed and northern long-eared bats if they occur while 
bats are hibernating. Secondarily, because eastern small-footed bats 
and northern long-eared bats exhibit high site fidelity, mine closures 
conducted during non-hibernating periods would cause them to expend 
more energy finding new hibernacula during a time when stored fat 
reserves are critical to their winter survival. Lastly, modifications 
to mines and/or surrounding areas could change the airflow and alter 
microclimates, possibly eliminating their utility as hibernacula. In 
general, threats to the integrity of hibernacula have decreased

[[Page 38101]]

at sites harboring the Indiana bat since it was first listed as 
endangered (Service 2007, p. 74); however, it is unclear whether mines 
containing unlisted bat species are afforded adequate protections. We 
do not have information in our files documenting that mines supporting 
hibernating populations of eastern small-footed bats or northern long-
eared bats are being closed. We find that the information provided in 
the Petition and other information in our files does not present 
substantial scientific or commercial information indicating the 
petitioned action may be warranted due to mine closures. However, we 
will further investigate the threat to habitat for both the northern 
long-eared and eastern small-footed bats in our 12-month status 
reviews.

Summary of Factor A

    In summary, we find the information provided in the Petition and 
other information in our files presents substantial scientific or 
commercial information indicating that the continued existence of these 
two species may be threatened by habitat destruction, modification, or 
curtailment caused by logging (northern long-eared bat); oil, gas, and 
mineral development (eastern small-footed and northern long-eared 
bats); and wind energy development (eastern small-footed and northern 
long-eared bats). The information provided for agricultural and 
residential development and mine closures was not substantial. We will 
further investigate the threats to habitat for both the northern long-
eared and eastern small-footed bats in our 12-month status reviews.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    The petitioner did not present information, nor do we have 
information in our files, suggesting that overutilization is affecting 
eastern small-footed bat or northern long-eared bat populations. 
However, we will further investigate whether overutilization for 
commercial, recreational, scientific, or educational purposes is a 
threat to the eastern small-footed bat and northern long-eared bats in 
our 12-month status reviews.
C. Disease or Predation
Information Provided in the Petition
    The petitioner provides information indicating that the fungal 
disease known as White-Nose Syndrome (WNS) has become a deleterious 
pathogen responsible for unprecedented mortality in hibernating bats in 
the northeastern United States, including the northern long-eared and 
eastern small-footed species. Over the past 3 years, WNS has caused 
local declines approaching 100 percent in some populations, with an 
estimated loss exceeding 1 million bats (Gargas et al. 2009, p. 148; 
Kunz 2009, p. 2; Reichard and Kunz 2009, p. 457 [note that the 
petitioner cited this reference as Reichard et al., in press (Petition, 
p. 22), but we assume Reichard and Kunz (2009) is the referenced 
document]; Petition pp. 19-23). The pathogen has rapidly spread 
throughout the northeastern United States since its discovery in the 
winter of 2006-2007, affecting six species of insect-eating bats, 
including the northern long-eared and eastern small-footed (Blehert et 
al. 2009, p. 227; Reichard and Kunz 2009, p. 457). Since its initial 
discovery at 5 sites in eastern New York State in 2007 (Gargas et al. 
2009, p. 147; Petition, p. 19), WNS has been documented in more than 60 
hibernacula, as far as 805 km (500 mi) from the initial infection zone 
(Szymanski et al. 2009, p. 7). By the end of winter 2008-2009, WNS had 
spread to 37 counties in the States of Massachusetts, New Jersey, New 
York, Vermont, West Virginia, New Hampshire, Connecticut, Virginia, and 
Pennsylvania (Gargas et al. 2009, p. 147; Reichard and Kunz 2009, p. 
457). WNS is linked to high mortality of several hibernating bat 
species (e.g., 81 to 97 percent mortality in hibernacula (Darling 2009, 
p. 3), up to 100 percent mortality in some populations (Kunz 2009, p. 
1)), including the northern long-eared and eastern small-footed 
(Blehert et al. 2009, p. 227).
    White-nose syndrome is associated with a previously unknown species 
of cold-loving fungus, Geomyces destructans (G.d.), which produces a 
skin infection among affected bats (Gargas et al. 2009, p. 152). The 
syndrome is characterized by the presence of profuse white fungal 
hyphae (thread-like filaments forming the vegetative part of a fungus) 
and conidia (non-motile spores) on the muzzle, ears, or wing membranes 
of hibernating bats (Gargas et al. 2009, pp. 148). Geomyces destructans 
penetrates the dermis (skin), eroding wing and ear tissue, and may 
extend hyphae into hair follicles and sebaceous glands (small glands in 
the skin that secrete an oily substance called sebum into hair 
follicles), yet the fungus does not typically lead to inflammation or 
immune response in the tissue (Blehert et al. 2009, p. 227; Gargas et 
al. 2009, p. 148; Petition, p. 20). This fungus grows optimally in low 
temperatures (5 to 14 [deg]C (40 to 55 [deg]F)) and high levels of 
humidity, conditions characteristic of winter bat hibernacula and 
ambient temperature of hibernating bats, thus potentially permitting 
year-round maintenance of this fungal species (Blehert et al. 2009, p. 
227; Gargas et al. 2009, p. 153; U.S. Geological Survey (USGS) 2009, p. 
2). This disease appears contagious. The fungus is transmitted from the 
environment to individual bats, from bat to bat when they are in close 
contact, as during hibernation, and likely from unintentional 
contamination from intercave movements by cavers or researchers (USGS 
2009, p. 2). The pathogen's apparent expansion rate and the current 
radius of WNS infection are generally consistent with the annual range 
(distance between summer and winter habitat) of individual bats from 
known WNS-affected hibernacula, suggesting that the dispersal of 
infected bats is likely the primary vector for the continued spread of 
this disease (Hicks et al. 2008, p. 18; Reichard and Kunz 2009, p. 
463).
    It is not known with certainty if the fungal infection is the 
direct cause of mortality or the secondary effect of some undetected 
malady; however, infected bats have been observed exhibiting aberrant 
behaviors, including shifts of large numbers of bats in hibernacula to 
roosts near the entrances or unusually cold areas; large numbers of 
bats dispersing during the day from hibernacula, even during mid-
winter; a general lack of responsiveness to human disturbance; and, on 
occasion, large numbers of fatalities, either inside the hibernacula, 
near the entrance, or in the immediate vicinity of the entrance (Boyles 
and Willis 2009, p. 93; Darling 2009, p. 2; Kunz 2009, pp. 3-4). 
Several factors may be responsible for the mortality associated with 
WNS, which is currently under investigation. First, WNS-affected bats 
exhibit wing damage with varying degrees of scarring, necrosis (death 
of cells or tissues through injury or disease, especially in a 
localized area of the body), and atrophy (wasting or decrease in size 
of a body organ, tissue, or part owing to disease, injury, or lack of 
use) of flight membranes, which may lead to reduced foraging success, 
leaving affected bats in poor condition as they prepare for hibernation 
in years after infection (Boyles and Willis 2009, p. 92; Reichard and 
Kunz 2009, p. 458). Bats with severe wing damage have been found to 
have significantly lower body mass than those with little or no WNS-
induced wing damage, and this may also contribute to reproductive 
decline or failure (Petition, p. 22). Though some

[[Page 38102]]

reports indicate that mild scarring or tissue necrosis of wing 
membranes caused by normal foraging injuries may heal in less than 4 
weeks, bacterial or fungal infection may delay this process (Reichard 
and Kunz 2009, pp. 462-463). A study by Reichard and Kunz (2009, p. 
463) found that greater than 80 percent of little brown bats (M. 
lucifugus) affected by WNS and initially exhibiting light wing damage 
(see Reichard and Kunz 2009, p. 460, for wing damage ranking 
prioritization) had failed to improve after recapture. Since wing 
damage compromises flight maneuverability and foraging success, the 
reduced abundance of bats with moderate-to-severe wing damage as summer 
progressed may be due to death from starvation or increased predation 
risk (Reichard and Kunz 2009, p. 463). Although not specific to the 
northern long-eared or eastern small-footed bats, Darling (2009, pp. 2-
3) noted that WNS-affected bats captured in May and June in Vermont 
showed substantial wing damage, which eventually leads to increased 
summer mortality.
    Second, hibernating WNS-affected individuals may arouse from a 
state of torpor more frequently or for longer periods than normal, 
which prematurely expends stored fat reserves on which they rely for 
winter survival (Kunz 2009, p. 4; USGS 2009, p. 1). Healthy bats 
typically arouse from torpor every 13 to 15 days, but WNS-affected 
individuals have been observed to awake every 2 to 4 days (Youngbaer 
2009, p. 3). Bats naturally arouse from torpor several times during 
hibernation to seek water, eliminate waste, and, if environmental 
conditions become unsuitable or if bats are physically disturbed, to 
make intracave and intercave movements (up to 200 km (124.3 mi)) 
(Caceres and Pybus 1997, p. 9; Whitaker and Mumford 2009, p. 211). 
However, arousal from torpor is energetically expensive, and chronic 
disturbance of hibernating bats is known to cause high rates of winter 
mortality through accelerated fat loss and starvation. Arousal from a 
state of torpor significantly increases the demand on limited energy 
stores as bats increase body temperature and metabolic rates (Caceres 
and Pybus 1997, p. 9). Further, bats typically do not have foraging 
opportunities to replace expended energy during winter months (Caceres 
and Pybus 1997, p. 9). For example, Thomas et al. (1990, p. 945) found 
little brown bats use an average of 108 milligrams (0.004 oz) of fat 
stores each time they arouse from torpor, which is energetically 
equivalent to 68 days of torpor. Arousals generally account for 80 to 
90 percent of the energy expenditure in hibernating animals during the 
winter (Caceres and Pybus 1997, p. 9); thus, increased arousal 
frequency contributes to premature energy store depletion. The 
petitioner postulates that WNS-affected individuals are irritated by 
the fungal infection, which causes bats to break torpor more frequently 
to groom, or in hope of feeding (Petition, p. 22).
    Lastly, WNS-affected individuals sampled in hibernacula have been 
found lacking chitinase (Petition, p. 21), an essential enzyme that 
remains active throughout the winter and allows for the breakdown of 
chitin, a primary component of insect exoskeletons (Whitaker et al. 
2004, p. 17). During the winter months, chitin remaining in the bats' 
digestive tracts from the previous summer's foraging may provide 
supplementary energy and nutrients crucial to overwintering bats 
(Whitaker et al. 2004, p. 17; Whitaker and Mumford 2009, p. 210); 
therefore, the absence of chitinase in WNS-affected bats may contribute 
to the observed winter starvation (Petition, p. 21). These observations 
are of interest to the WNS research community, but the hypothesized 
connection to mortality is largely unsubstantiated.
    At some sites, WNS-affected bats had poorer body condition (e.g., 
lower body-mass index (BMI) and less stored fat) in summer and winter, 
and were generally smaller throughout the reproductive period in 2008, 
when compared to data collected in 1975 (Kunz et al. 2008 as cited in 
the Petition, p. 21). This raises concerns that bats with WNS that 
survive the hibernation period will exhibit lower reproductive rates 
(Reichard and Kunz 2009, p. 458). If their flight abilities are 
compromised during the active season due to wing damage from the fungal 
infection, individuals are less likely to achieve sufficient energy and 
nutrient intake to sustain gestation and lactation (Reichard and Kunz 
2009, p. 461). For instance, approximately 85 percent of female adult 
little brown bats in WNS-affected colonies were observed to be 
reproductively active in 2008, whereas past research has indicated 
that, in normal years, over 93 percent of females were reproductively 
active (Reichard and Kunz 2009, p. 462). The petitioner also notes 
major additional bat declines (more than 90 percent) observed at summer 
maternity colonies that were stable or growing before WNS, and pup 
mortality in the 2009 reproductive season was unusually high (Reynolds, 
pers. comm. as cited in the Petition, p. 23); however, the Petition did 
not specify which bat species or which locations exhibited a decline.
    Although immune function is somewhat suppressed in all hibernating 
bats, there is evidence that WNS-affected bats have further reduced 
immune competence during hibernation (Kunz 2009, p. 4; Petition, pp. 
21-22). In one study, WNS-affected individuals' innate immunity (basic 
resistance to disease, which is less energetically costly) seems to be 
unchanged or even slightly increased, whereas their adaptive immunity 
(more complex antigen-specific response, which is more energetically 
costly) was found to be significantly suppressed (Jacob and Reeder, 
unpublished data as cited in the Petition, p. 21); however, it is 
unclear whether the results of this study are typical. The Petitioner 
infers that this may suggest a reduced immune competence, although the 
immunological mechanisms behind these differences are not yet known 
(Petition, p. 21).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    We reviewed cited and referenced publications that were readily 
available in our files, and in general we find substantive information 
indicating that assertions made by the petitioner are accurate. In 
particular, Reichard and Kunz (2009), Blehert et al. (2009), and Gargas 
et al. (2009) identified substantial threats from WNS to multiple bat 
species, including the northern long-eared and eastern small-footed 
bats. Some commonly observed symptoms associated with WNS-affected bats 
include visible fungus on flight membranes, excessive or unexplained 
numbers of dead or dying bats at or near the hibernaculum, moderate-to-
severe damage to wing membranes, and abnormal behavior (e.g., 
population shift to entrance of the hibernaculum, decreased arousal 
with disturbance inside hibernaculum). A study by Reichard and Kunz 
(2009, p. 462) reveals an unexpectedly high prevalence of wing damage 
on little brown bats (Myotis lucifugus) within the range of WNS, 
although the authors note wing damage, low body mass, and decreased 
reproductive success may result from many possible factors, including 
WNS. Ultimately, these conditions may compromise flight ability and 
recruitment, and increase risk of starvation from repeated arousal from 
a state of torpor during hibernation and other life history events. 
Further, declines in reproduction by northern long-eared or eastern 
small-footed bats is a source of concern because of their

[[Page 38103]]

low reproductive rate (one offspring annually (Hitchcock et al. 1984, 
p. 128; Caceres and Pybus 1997, p. 4; Caceres and Barclay 2000, p. 2)), 
which makes recovery from potential population declines difficult.
    Although the information cited in the Petition includes adverse 
impacts of WNS on other more abundant hibernating bat species, because 
the northern long-eared and eastern small-footed species have been 
documented as susceptible to WNS, it is reasonable for us to conclude 
similar effects to the petitioned species (Hicks et al. 2008, p. 21; 
Blehert et al. 2009, p. 227; Gargas et al. 2009, p. 148; Reichard and 
Kunz 2009, p. 457; Youngbaer 2009, p. 3). WNS has caused large-scale 
declines in many affected bat populations, including the northern long-
eared and eastern small-footed species, with total estimated losses 
exceeding 1 million bats (Gargas et al. 2009, p. 148; Kunz 2009, p. 2). 
In New York State, WNS mortality rates from 2007 (first year monitored) 
ranged from 57 to 64 percent; in 2008, mortality rates rose to between 
81 and 100 percent (Hicks et al. 2008, p. 19). Vermont has documented 
population declines of 95 percent at WNS-affected hibernacula (Darling 
2009, p. 4). Mortality of northern long-eared and eastern small-footed 
bats linked to WNS has occurred across portions of their ranges (Gargas 
et al. 2009, p. 148). The confirmation of WNS across large portions of 
the eastern small-footed bat's range and eastern sections of the 
northern long-eared bat's range (Szymanski et al. 2009, p. 47), along 
with the historical and anticipated future rate of WNS spread, indicate 
that WNS may have the potential to negatively impact large portions of 
the petitioned species' ranges in the near future.
    The Service is leading a cooperative effort with Federal and State 
agencies, Tribes, researchers, universities and other nongovernment 
organizations to research and manage the spread of WNS. The Service 
issued an advisory calling for a voluntary moratorium on all caving 
activity in States known to have hibernacula affected by WNS, as well 
as caving activity in all adjoining States, unless conducted as part of 
an agency-sanctioned research or monitoring project (Service 2009b). 
This advisory is not a regulatory mechanism. Several States, including 
Missouri, Iowa, and Illinois, have now closed all State-owned 
hibernacula to human entry, but entry to hibernacula on private lands 
remains at the landowners' discretion.
    We find the Petition and other information in our files present 
substantial information indicating that WNS may be a threat to the 
northern long-eared bat and the eastern small-footed bat. We will 
further investigate this threat to both the northern long-eared and 
eastern small-footed bats, as well as ongoing conservation efforts to 
manage the threat, in our 12-month status reviews.
D. The Inadequacy of Existing Regulatory Mechanisms
    According to the petitioner, existing regulatory mechanisms do not 
adequately protect eastern small-footed bats or northern long-eared 
bats from the variety of threats discussed in the petition (Petition, 
pp. 28-38). The petitioner discusses inadequate regulations governing 
private, State, and Federal lands, and inadequate oversight by State 
and Federal agencies for impacts related to development, forestry, wind 
energy development, and oil, gas, and mineral extraction. Lastly, the 
petitioner asserts that the management of WNS by State and Federal 
agencies is inadequate.
Information Provided in the Petition
    Private lands constitute approximately 90 percent of the total land 
area within the ranges of the eastern small-footed bat and northern 
long-eared bat, and regulation of activities on these lands that 
degrade or destroy habitat is minimal (Petition, p. 29). In addition, a 
substantial number of bat hibernacula occur on private lands, and 
although the Federal Cave Resources Protection Act of 1988 affords 
protection to caves on federally owned lands, it does not protect caves 
on private lands (Petition, p. 32).
    The petitioner states that State-owned lands constitute 
approximately 5 percent of the total land area within the ranges of the 
eastern small-footed bat and northern long-eared bat (Petition, p. 33). 
The petitioner states that the eastern small-footed bat is State-listed 
as endangered in New Hampshire, threatened in Vermont and Pennsylvania, 
and is a species of special concern in Connecticut, Massachusetts, 
Maryland, Missouri, North Carolina, New Jersey, New York, Ohio, 
Oklahoma, Tennessee, Virginia, West Virginia, and Georgia. The 
petitioner states that the northern long-eared bat is a candidate for 
State-listing in Pennsylvania and is a species of special concern in 
Missouri and Montana. The petitioner asserts, however, that protections 
afforded by State-listing are narrow. Most State endangered species 
laws protect against trade or possession of any State-listed species 
but make no provisions against habitat destruction (Petition, p. 33). 
According to the petitioner, threats with inadequate regulatory 
mechanisms on State lands include oil, gas, and mineral extraction; 
timber management; and wind energy development (Petition, pp. 33-35). 
Lastly, the petitioner asserts that although most States have laws 
protecting caves and cave-dwelling species, enforcement of regulations 
is variable (Petition, p. 35).
    Between 4 and 6 percent of the total land area within the ranges of 
the eastern small-footed bat and northern long-eared bat are federally 
owned, and most of these lands are National Forest lands managed by the 
U.S. Forest Service. Land and Resource Management Plans written for 
each National Forest contain provisions to protect federally listed bat 
species (e.g., buffer zones around hibernacula and maternity sites, 
restricted access to caves, snag retention); however, generally no 
provisions are included for the protection of non-federally listed 
species (Petition, pp. 29-30). A species designated as sensitive, 
however, is entitled to impact analysis on proposed actions pursuant to 
the National Environmental Policy Act, although if adverse effects are 
expected, there is no requirement for the selection of a benign 
alternative action, monitoring, or mitigation for that species 
(Petition, p. 31).
    The petitioner asserts that regulations governing oil, gas, and 
mineral extraction on Federal lands are wholly inadequate for the 
protection of eastern small-footed bats and northern long-eared bats, 
particularly in split-estate situations (Petition, pp. 31-32). In 
split-estate situations, the rights to minerals occurring beneath 
Federal lands are privately owned. In these cases, bat populations 
presumably protected by the domain of Federal agencies and 
environmental regulations may be threatened by drilling or mining 
activities on privately held subsurface estates (Petition, p. 31). The 
petitioner also asserts that economic considerations consistently take 
precedence over species protections, and cites the Service as having 
said that in nearly all cases where there has been a conflict between 
endangered species and a mining project, the project has been permitted 
with only minor modifications (Service 1997, p. 1651). Lastly, the 
petitioner states that there is little oversight by the Office of 
Surface Mining on post-mining reclamation once a permit has been 
issued, even though wildlife habitat is cited as the predominant post-
mining land use (Petition, p. 32).
    The petitioner states that Federal oversight of wind energy 
development

[[Page 38104]]

is limited. While the Service may recommend pre- and post-construction 
surveys, developers are not required to engage in any pre-construction 
surveying, monitoring, or mitigation unless a federally listed 
endangered species is present (Petition, pp. 32-33).
    The petitioner asserts that regulatory mechanisms are inadequate 
for the management of WNS. On September 8, 2009, a draft framework for 
a plan to assist States, Federal agencies, and Tribes in managing WNS 
in bats was prepared. The framework provides an overview of the 
expected plan content that will guide future activities responding to 
WNS (Service 2009a). The petitioner takes several issues with the plan, 
including concerns over the lack of funding for implementing the plan, 
but most important, asserts that the plan will not provide adequate 
legal authority for the protection of non-federally listed species 
(Petition, p. 36).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    The eastern small-footed bat is State-listed as threatened, 
endangered, or a species of special concern throughout the majority of 
its range, and the northern long-eared bat is State-listed or proposed 
for listing in several States, including in areas affected by WNS. 
Regulatory protections for State-listed species vary by individual 
States, but, in general, State-listed species do not receive the same 
avoidance, minimization, compensation, or monitoring measures a