WV – Bat Conservation Plan Briefing Document

Previous guidance for Option 1 provided the proponent the opportunity to assume presence of the Indiana Bat and apply avoidance and minimization measures of cutting trees in the winter hibernation months, thus reducing the potential for incidental take by cutting trees between Nov. 15 and March 31.

Option 2 provided the proponent with the opportunity to not assume presence. The proponent would then take the responsibility of conducting mist net surveys during the summer months (June 1 through Aug. 31) to demonstrate the physical presence or non-presence of the Indiana Bat. If Indiana Bat were present (captured in the mist net) the USFWS would require tree clearing to occur during the winter clearing season. If Indiana Bat presence was not verified (no capture) the project would be allowed to clear trees or be constructed at any time of the year.

In addition to cutting trees in the winter months, Technical Guidance Revisions to Option 1 require that a detailed habitat assessment, conservation and mitigation plan to be developed and implemented.

Option 2 was not significantly revised; however, because the changes in Option 1 were not available until July 12, Option 2 became mute. There was no time left in the mist net survey period to verify presence or non-presence of the Indiana Bat. Western WV is not considered good or even average quality habitat by bat experts. There is a strong likely hood that a "no presence" determination could be established by conducting mist net surveys.

Aggregation of Acreage. Without warning, USFWS determined that it may choose to consider any existing or planned project to be a "piece" of a larger project within the vicinity of a currently proposed project. Under these conditions, no project can be considered as a single and complete project with an independent utility as defined by regulatory agencies or the permitting scope of Nationwide permits (NWP).    

Expansion of Buffers. Survey buffers were increased to 2 miles from the center point of non-linear projects and a ¼ mile on either side of linear projects. Both survey buffers are impossible to achieve on privately owned land.  

Problematic Timing of Issuance of Revised Technical Guidance. The changed technical guidance was not communicated until July 12, leaving less than 6 weeks to complete the requirements contained in the technical guidance, which were not previously required or anticipated by industry.  

Bat mist net survey plans must be submitted to the West Virginia Department of Natural Resources (WVDNR) for approval, WVDNR specifies a 30 day approval and processing time and then the plans are forwarded to USFWS for approval. Typically, field survey work is a minimum of an additional 2 weeks. There was absolutely no possible way surveys could have been conducted to demonstrate "no presence" in the time frame this guidance was presented.     

Insufficient Communication by USFWS Field Office of Justification for Untimely Guidance and Implementation Strategies for Its Substantive Changes. Failure to timely release changes in the Option 1 letter made it impossible to exercise Option 2 this year. The pending listing of the Northern Long Eared Bat will be decided in April, listing of this species will result in a completely new set regulations and guidance for survey season in summer of 2015 as it is widespread across West Virginia.  

The USFWS Elkins Field Office did not address substantive merits and justification for its changes in technical guidance for the Indiana Bat. This guidance was instigated with no new scientific background or associated studies made available for review.

The Elkins Field Office failed to articulate guidance criteria relative to the regulated community or to the federal regulatory partners. Where there is a federal nexus as part of the permitting process, federal regulatory authorities are required to consult with USFWS for technical assistance under the Threaten and Endangered Species Act. As technical advisors to the Army Corps of Engineers the, USFWS provides guidance that becomes a requirement to satisfy Nationwide Permit Special Conditions.   

Public Participation and Communication. When viewed in the context of actions taken by other FWS Field Offices within the Indiana Bat range, the West Virginia Field Office has strayed far from the norm with regard to public participation. Typically bat survey protocols are released every spring in anticipation of the summer survey season. This process encouraged cooperation among agencies, industry and academia to develop guidelines that best served all interests. West Virginians are worthy of the same opportunity to participate. When viewed in the context of actions taken in the past of compared to actions taken by other FWS Field Offices within the Indiana Bat range, the West Virginia Field Office has strayed far from the norm with regard to public participation.  

Policy Substance. Also troubling is the significant divergence of the new policy versus other FWS offices in other states. Kentucky requires a complete habitat assessment only if the project is within the radius of a known capture. If the project is outside that radius, tree clearing is allowed at any time of year. Ohio does not require a habitat assessment if tree clearing is limited to the winter months. Pennsylvania only requires a conservation plan when the project is within a radius of a known capture. Under the new policy, West Virginia would be the only state that requires an onsite habitat assessment, conservation plan, and limits tree clearing to winter months even outside of the radius of a known habitat.  

The unexpected and uncommunicated changes in its implementation of policies and regulations by the West Virginia Field Office of USFWS have already and will certainly continue to cause the expenditure of considerable costs and loss of important operations activities with no evidence that such costs will benefit the Indiana Bat population.