[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]


 
                     THE NORTHERN LONG-EARED BAT: 
                     THE FEDERAL ENDANGERED  
                     SPECIES ACT AND IMPACTS OF A 
                     LISTING ON PENNSYLVANIA AND 
                     37 OTHER STATES

=======================================================================

                        OVERSIGHT FIELD HEARING

                               BEFORE THE 

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

         Monday, September 8, 2014, in Harrisburg, Pennsylvania

                               __________

                           Serial No. 113-85

                               __________

       Printed for the use of the Committee on Natural Resources
       
       
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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
            PETER A. DeFAZIO, OR, Ranking Democratic Member

Don Young, AK                        Eni F. H. Faleomavaega, AS
Louie Gohmert, TX                    Frank Pallone, Jr., NJ
Rob Bishop, UT                       Grace F. Napolitano, CA
Doug Lamborn, CO                     Rush Holt, NJ
Robert J. Wittman, VA                Raul M. Grijalva, AZ
Paul C. Broun, GA                    Madeleine Z. Bordallo, GU
John Fleming, LA                     Jim Costa, CA
Tom McClintock, CA                   Gregorio Kilili Camacho Sablan, 
Glenn Thompson, PA                       CNMI
Cynthia M. Lummis, WY                Niki Tsongas, MA
Dan Benishek, MI                     Pedro R. Pierluisi, PR
Jeff Duncan, SC                      Colleen W. Hanabusa, HI
Scott R. Tipton, CO                  Tony Cardenas, CA
Paul A. Gosar, AZ                    Jared Huffman, CA
Raul R. Labrador, ID                 Raul Ruiz, CA
Steve Southerland, II, FL            Carol Shea-Porter, NH
Bill Flores, TX                      Alan S. Lowenthal, CA
Jon Runyan, NJ                       Joe Garcia, FL
Markwayne Mullin, OK                 Matt Cartwright, PA
Steve Daines, MT                     Katherine M. Clark, MA
Kevin Cramer, ND                     Vacancy
Doug LaMalfa, CA
Jason T. Smith, MO
Vance M. McAllister, LA
Bradley Byrne, AL

                       Todd Young, Chief of Staff
                Lisa Pittman, Chief Legislative Counsel
                 Penny Dodge, Democratic Staff Director
                David Watkins, Democratic Chief Counsel
                                 ------                                

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Monday, September 8, 2014........................     1

Statement of Members:
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     2
        Prepared statement of....................................     3
    Perry, Hon. Scott, a Representative in Congress from the 
      State of Pennsylvania......................................     6
    Thompson, Hon. Glenn, a Representative in Congress from the 
      State of Pennsylvania......................................     4

Statement of Witnesses:
    Biggica, Russ, Director, Government and Regulatory Affairs, 
      Pennsylvania Rural Electric Association, Harrisburg, 
      Pennsylvania...............................................    13
        Prepared statement of....................................    14
    Brubaker, Jim, Board Member, Pennsylvania Farm Bureau, Union 
      County Farmer, Buffalo Valley Farms, Lewisburg, 
      Pennsylvania...............................................    31
        Prepared statement of....................................    33
    D'Amico, Louis, President and Executive Director, 
      Pennsylvania Independent Oil and Gas Association, Wexford, 
      Pennsylvania...............................................    15
        Prepared statement of....................................    17
    Lyskava, Paul, Executive Director, Pennsylvania Forest 
      Products Association, Harrisburg, Pennsylvania.............    56
        Prepared statement of....................................    58
    Matteson, Mollie, Senior Scientist, Center for Biological 
      Diversity, Richmond, Vermont...............................    49
        Prepared statement of....................................    50
    Melville, Martin, Owner, Melville Forestry Services, Centre 
      Hall, Pennsylvania.........................................    54
        Prepared statement of....................................    55
    Pyle, Honorable Jeff, Representative, District 60, 
      Pennsylvania House of Representatives, Armstrong, Indiana 
      and Butler Counties........................................     9
        Prepared statement of....................................    10
    Stilley, John, Owner and President, Amerikohl Mining, Inc., 
      Butler, Pennsylvania.......................................    36
        Prepared statement of....................................    38

Additional Materials Submitted for the Record:
    Juniata Valley Audubon, Stan Kotala, M.D., Conservation 
      Chair, Letter submitted for the record.....................    82
    McCarter, Steve, State Representative, Pennsylvania's 154th 
      Legislative District, September 5, 2014, Letter submitted 
      for the record.............................................    83
                                     


  OVERSIGHT FIELD HEARING ON THE NORTHERN LONG-EARED BAT: THE FEDERAL 
ENDANGERED SPECIES ACT AND IMPACTS OF A LISTING ON PENNSYLVANIA AND 37 
                              OTHER STATES

                              ----------                              


                       Monday, September 8, 2014

                     U.S. House of Representatives

                     Committee on Natural Resources

                        Harrisburg, Pennsylvania

                              ----------                              

    The committee met, pursuant to call, at 10:00 a.m., at the 
Pennsylvania State Capitol Complex, North Office Building, 
Hearing Room 1, Harrisburg, Pennsylvania, Hon. Doc Hastings 
[Chairman of the Committee] presiding.
    Members present: Representatives Hastings, Thompson, and 
Perry.
    The Chairman. The House Natural Resources Committee will 
come to order. The committee meets today to hear testimony on a 
hearing entitled ``The Northern Long-Eared Bat: The Federal 
Endangered Species Act and Impacts of a Listing on Pennsylvania 
and 37 Other States.''
    By way of introduction, I am Congressman Doc Hastings, and 
I represent that 4th District in Washington State, and also 
have the privilege to serve as Chairman of the House Natural 
Resources Committee. I am joined here by two of my colleagues; 
Mr. Thompson from Pennsylvania, who is a member of the 
committee, and Mr. Perry, in whose district we are meeting, who 
is not, so I--without objection, I will ask unanimous consent 
that Mr. Perry be able to join the hearing, and I know nobody 
is going to object because I am not and neither is G.T., so I 
know that.
    So since we are in Mr. Perry's district, I am going to 
yield to him to begin as we normally begin our day in 
Washington, DC, and I will yield to Mr. Perry.
    Mr. Perry. Well, thanks, Mr. Chairman, and welcome to the 
4th Congressional District. Being that this is a congressional 
hearing that we are about to begin, as we do with every session 
of the House of Representatives, with the posting of the colors 
and the Pledge of Allegiance, and keeping with flag code, it is 
customary to stand and place your hand over your heart every 
time the flag is in motion, and remain standing for the Pledge 
of Allegiance.
    I now recognize Major Bruce Youngblood, U.S. Marine Corps 
retired, to lead the Harrisburg High School NJROTC to post the 
colors.
    [Pledge of Allegiance recited.]
    Mr. Perry. As a token of our appreciation, we graciously 
give and offer this flag flown over the United States Capitol, 
and I am going to walk down and hand it to the----
    The Chairman. I thank the gentleman for that, and I thank 
the Color Guard.
    We will proceed as we normally proceed on congressional 
hearings in Washington, DC, and those hearings are all started 
where Members will make an opening statement, and then after 
that, we will hear from our witnesses, and then following that 
will be questions that I know will arise coming from the three 
of us up here, and--well, I will get into that detail when we 
get to that part.
    I will now recognize myself for my opening statement.

    STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF WASHINGTON

    The Chairman. Today is the final in a series of field 
hearings the House Natural Resources Committee has held over 
the past 4 years on The Endangered Species Act, or ESA. The 
goal of this effort has been to find common ground on the need 
to improve and update a 40-year-old Federal law so that we can 
help protect species and people in the 21st century. There are 
ways to do both, beginning with data transparency and utilizing 
the expertise of local, state and private efforts in fulfilling 
the goal of species recoveries.
    These hearings have taken us from Fresno, California; 
Longview, Washington; Billings, Montana; Casper, Wyoming; and 
Batesville, Arkansas, and now here to the great Commonwealth of 
Pennsylvania.
    Because of the mega settlement that will be alluded to many 
times, the ESA is now no longer primarily a western issue. It 
is now affecting the eastern parts of the United States, and 
that is what this hearing in Pennsylvania is all about. And I 
am pleased to have two of my colleagues here today in this 
beautiful state capitol to examine one of the most sweeping ESA 
listing proposals that has arisen out of the Obama 
administration's 2011 mega settlement, with the Center for 
Biological Diversity, and the proposed endangered listed of the 
Northern Long-Eared Bat, which was in that mega settlement. 
These regulations, if culminated, could impact a wide swath of 
the country, and the map shown above you illustrates how broad 
of an area is affected.
    You know, what is kind of disturbing, although 38 states 
are affected, the Fish and Wildlife Service has not yet held 
even a single public hearing on its proposal or its nexus to 
other regulations that would directly impact the millions of 
acres of local, state and private lands, and that would cause 
the restriction or shutdown of the activities on those lands.
    Now, I mentioned that I am from Washington State, so on a 
parochial note, I just want to point out that it has been over 
20 years since the Federal Government listed the Northern 
Spotted Owl in the Pacific Northwest. The resulting ESA 
policies of that decision have now resulted over 20 years, to 
where more than 80 percent of the timber industry there is off-
limits and 9 million acres of forest are off-limits, and as a 
result of that, if you have read in the paper this year a 
number of wildfires that have happened in the West, and I 
attribute much of that because of lack of good management as a 
result of that listing.
    Now, back to the issue at hand. The Center for Biological 
Adversity, the group that is seeking to list the bat under ESA, 
acknowledge, and I will quote directly, ``little is known about 
the population trends'' of the bat, and that a small amount of 
population level data, and I quote again, ``makes any 
conclusion provisional at best.'' Now, this gray area led to a 
settlement, yet this group is blaming farming, forest 
management and other manmade activities as a cause for the bat 
decline. Ironically, the likely primary cause for any 
documented decline of the bats is not caused by any human-
related activity, but rather by a disease transmitted mostly 
from bats, called the White Nose Syndrome. It seems to me that 
efforts should focus on that issue, rather than creating a 
Federal Endangered Species solution in search of a problem. 
Yet, that is what may happen with the Fish and Wildlife Service 
arbitrary settlement--with this mega settlement.
    Now, the result of that could pave the way for Federal 
designation as early as next year. This, despite many natural 
resource state directors who raised concerns that they were 
shut out of the Federal planning process, and that these 
Federal bat guidelines are overly restrictive, they are based 
on insufficient data, and would have a crippling effect on 
hundreds of thousands of landowners and the forest industries.
    So I will conclude by saying this. Everyone--every hearing 
that we have had with the Natural Resources Committee, nobody, 
nobody has said a species should go extinct. And we--and I 
certainly share that, and I think most people share that, but 
the passion--but the question in this particular case is the 
best way to help the bat population. Federal edicts that ignore 
state efforts and data, and impose one-size-fits-all solutions 
are not the most realistic way to achieve, I think, the 
objective of saving any species.
    [The prepared statement of Mr. Hastings follows:]
  Prepared Statement of the Hon. Doc Hastings, Chairman, Committee on 
                           Natural Resources
    Today is the final in a series of field hearings the House Natural 
Resources Committee has held over the past 4 years on the Endangered 
Species Act (ESA). The goal of this effort has been to find common 
ground on the need to improve and update the 40-year-old Federal law so 
that we can help protect species and people in the 21st century. There 
are ways to do both, beginning with data transparency and utilizing the 
expertise of state, local and private efforts while fulfilling the 
worthwhile goal of species recovery.
    These hearings have taken us from Fresno, California; Longview, 
Washington; Billings, Montana; Casper, Wyoming; Batesville, Arkansas to 
the great Commonwealth of Pennsylvania. As we have witnessed, the ESA 
is no longer just a western issue--it is now affecting the eastern 
United States and that's what this hearing is about.
    I am pleased to join several House colleagues here today in the 
State Capitol to examine one of the most sweeping ESA listing proposals 
arising out of the Obama administration's 2011 mega-settlements with 
the Center for Biological Diversity: the proposed endangered listing of 
the Northern Long-Eared Bat. These Federal regulations could impact a 
wide swath of the country.
    This map illustrates just how broad of an area is affected. 
Unfortunately, although 38 states are affected, the Fish and Wildlife 
Service has not held even a single public hearing on its proposal or 
its nexus to other regulations that would directly impact millions of 
acres of private, local, state, and Federal lands and restrict or shut 
down a host of activities on them. I might add, it has been over 20 
years since the Federal Government listed the Northern Spotted Owl in 
the Pacific Northwest, and the resulting ESA policies of that decision 
have shut down more than 80 percent of the timber industry there, 
placed more than 9 million acres of forests off limits, and decimated 
hundreds of thousands of acres of forests and owl habitat from 
catastrophic wildfires due to poor management every year.
    The Center for Biological Diversity, the group seeking to list the 
bat under ESA, acknowledges that ``little is known about population 
trends'' for the bat, and that the small amount of population-level 
data ``makes any conclusion provisional at best.'' Yet, they blame 
farming, forest management and other man-made activities as the cause 
of bat decline.
    Ironically, however, the likely primary cause for any documented 
decline of the bats is not caused by any human-related activity, but 
rather from a disease transmitted mostly from bats to other bats called 
``White Nose Syndrome.'' It seems to me that efforts should focus on 
that issue, rather than creating a Federal endangered species solution 
in search of a problem.
    Yet, that is what may happen with the Federal Fish and Wildlife 
Service's arbitrary settlement with the Center for Biological 
Diversity, which has paved the way for a Federal designation as soon as 
early next year. This is despite State Natural Resource Department 
Directors who raised strong concerns that they were shut out of the 
Federal planning process, and that these Federal bat guidelines are 
overly restrictive, based on insufficient data, and would have a 
``crippling effect'' on hundreds of thousands of landowners and the 
forest industry.
    I will conclude by saying that everyone wants to protect bats 
because they are good for the environment and good for people because 
of how many insects they can devour. But, the question is over the best 
way to help the bat population. Federal edicts that ignore state 
efforts and data and impose one-size-fits-all solutions are not the 
most cooperative way to achieve this objective. We have expert 
witnesses here today to help find solutions that will protect bats and 
Pennsylvania's economy. I look forward to their testimony and thank my 
colleagues Congressman Thompson and Congressman Perry for hosting this 
hearing.

                                 ______
                                 

    The Chairman. So today we have in front of us expert 
witnesses to offer solutions that will protect bats and 
Pennsylvania's economy, and so I look forward to hearing your 
testimony.
    With that, I will recognize the gentleman from the 5th 
District in Pennsylvania, Mr. Thompson, for his opening 
statement.

   STATEMENT OF THE HON. GLENN THOMPSON, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF PENNSYLVANIA

    Mr. Thompson. Well, Mr. Chairman, thank you so much. I want 
to thank you for holding this important hearing today. Welcome, 
everyone, to this hearing. Thank you to our witnesses who are 
here to testify and share your experience, your observations, 
your thoughts.
    Mr. Chairman, I want to thank you also as you finish up in 
your final term, and we have lots of work to do between now and 
the end of that, but I also want to thank you for all of your 
extensive work in the House of Representatives, especially as 
Chairman of the Natural Resources Committee over these past few 
years, which I have had an honor to serve under your 
leadership. You have been a great mentor and a great leader on 
these issues for the American people.
    Under your chairmanship, you have shown real leadership on 
so many issues, and this is especially true on the topic of the 
Endangered Species Act with a creation of the ESA Working Group 
and the numerous bills the committee has reported out.
    I just want to remark a little bit about, you know, if this 
administration--it struck me, we had a unique perspective here, 
looking out at all of you when we were honoring our Nation's 
flag and colors and we were unified today; if this 
administration would bring a team together and, quite frankly, 
respect everybody's opinion in a way that unites the way this 
room was united at the start of this hearing, we wouldn't be 
having this hearing today because everybody's input would be 
welcome and would be considered on important issues such as 
this--the Northern Long-Eared Bats, but it is that, quite 
frankly, that lack of leadership that has kind of led us to 
this point.
    Let me say that the goals of the Endangered Species Act are 
noble and worthy. You know, we have a responsibility to protect 
our environment and promote species conservation, but as we 
have seen over the past few decades, the ESA is far from 
perfect, and has generated many unintended consequences. As a 
result, we are at a point now where the law desperately needs 
to be improved and modernized. In fact, I think the last time 
that the ESA was updated was 1984.
    Voice. 1989.
    Mr. Thompson. 1989. Under the Chairman's leadership, 
through work at the committee level, and efforts by the 
Congressional ESA Working Group, we put forward a thoughtful 
analysis of some of the key areas of the law that need the most 
urgent attention. Now, these efforts are focused on making the 
law more transparent, ensuring that listing determinations are 
based on sound science and proper data, and most importantly, 
that local communities and stakeholders are provided a voice in 
the process. Furthermore, we have sought to build consensus 
around better solutions, which isn't always easy in the current 
political climate.
    Now, as many here know, and as we have seen countless times 
around the country, listing a species as endangered under the 
ESA can have significant consequences on private property, land 
use, resource management and our economy. As frequently 
required by ESA, limiting or prohibiting land use can impact 
any number of economic activities in the communities that rely 
on the land. This includes activities such as agriculture, 
mining, as well as energy production and distribution. This 
also includes forestry and all forest management activities, 
which can be precluded under an ESA listing. Now, forestry is 
particularly troubling because even management activities to 
promote forest health can be restricted under ESA. This is 
interesting because it is also contrary to Pennsylvania 
Department of Community and Natural Resources findings that 
forest management activities including removing timber and 
proscribed burns help create foraging habitat that is 
beneficial to bats.
    While the economic and land management impacts are 
troubling enough, another major concern I have with this 
proposed listing is that limiting land use activities 
fundamentally will not solve the problem in the case of the 
Northern Long-Eared Bat. The underlying problem with the 
species is the spread of the White Nose Syndrome, rather than 
habitat loss due to human activities. And no one can deny 
population losses due to the White Nose Syndrome, but 
furthermore, there is a consensus that we must know more about 
this disease, and to improve partnerships at all levels to 
improve science-based efforts to slow its spread.
    Unfortunately, at the current time, there is no casual 
connection between the land use being regulated under the 
proposed designation and harm to the species in question. The 
best that we have heard repeatedly from a variety of interests, 
the science and data are inconclusive at this time to warrant 
an ESA listing. In fact, as is the service--forest--the Fish 
and Wildlife Service acknowledges, and I quote, ``even if all 
habitat-related stressors were eliminated or minimalized, the 
significant effects of White Nose Syndrome on the Northern 
Long-Eared Bat would still be present.''
    The Fish and Wildlife Service recently granted a 6-month 
extension of public comment period, which I appreciate, 
referencing the substantial disagreement regarding the 
scientific data used to support determination.
    Listing the Northern Long-Eared Bat as endangered, 
potentially, will have enormous impacts up and down the East 
Coast because the species is found not just in the Keystone 
State of Pennsylvania, but, obviously, 38 states. So, 
therefore, it is imperative that we get the science right, and 
strategically address the root problem of the apparent 
population losses, rather than restrict large areas of the 
economy and activities that would have no bearing on slowing or 
reversing the White Nose Syndrome.
    Again, thank you, Mr. Chairman, for being here today and 
for hosting this important hearing. I thank you to my good 
friend and colleague, Mr. Perry, for having this in his 
congressional district, and to all the panelists, thank you for 
your time and efforts, and we look forward to hearing your 
testimonies.
    Mr. Chairman, I yield back.
    The Chairman. I thank the gentleman for his statement and 
now recognize our host today, the gentleman from, as we say in 
Washington, DC, the gentleman from the 4th District of 
Pennsylvania, Mr. Perry, for his statement.

STATEMENT OF THE HON. SCOTT PERRY, A REPRESENTATIVE IN CONGRESS 
                 FROM THE STATE OF PENNSYLVANIA

    Mr. Perry. Thank you, Chairman, and thank you for selecting 
the 4th District, beautiful Pennsylvania, to hold this hearing, 
and I must let you know that I have really grown, in a short 
period of time, very fond of Chairman Hastings, Doc, as we call 
him, and let him know how saddened I am to know that he is 
departing the U.S. Congress, and I have really enjoyed my time 
with him, and find him to be one of the most professional and 
well-read and articulate Members of Congress, and I think his 
leadership in that regard will be dearly missed. I would also 
like to thank G.T. for coming and participating, and allowing 
me to participate as well.
    As the Chairman mentioned, the House Natural Resources 
Committee has held several hearings on the Endangered Species 
Act with the goal of finding common ground with respect to 
this, what many believe is an outdated Federal policy. We are 
here today to better understand the Endangered Species Act and 
the potential consequences to the Commonwealth that a recent 
Obama administration proposed listing under the ESA of the 
Northern Long-Eared Bat. The proposed listing affects 
Pennsylvania as well as 37 other states, and it will directly 
impact hundreds, if not thousands, of acres in Pennsylvania and 
business activities on them.
    It is my concern that the Federal listing of this scope and 
magnitude should not be driven by arbitrary court settlement 
deadlines, or be based upon unpublished or sketchy data or 
personal opinions by Federal bureaucrats. It is vitally 
important that these decisions are carefully and openly 
scrutinized and sound, scientific data is used. It is also my 
understanding that the Center for Biological Diversity, the 
group seeking to list the bat under the ESA, acknowledges that 
they do not know much about the current population trends, yet 
they suggest the root cause is farming, coal mining and natural 
gas exploration. With that said, it has recently come to light 
that the primary cause in the decline of the bat population is 
the result of White Nose Syndrome, a disease transmitted 
through other bats. Because this is a relatively newly 
discovered disease, it is too soon to tell from the little 
currently available Federal, state and other scientific 
research what the extent of the disease's impact has on long 
eared bats. With only the data from about half of the states 
where the disease has been found, isn't it a bit premature for 
the Fish and Wildlife Service to conclude that the bat is 
endangered in 38 states? Instead of first focusing on 
mitigating the bat-caused disease, the Service issued guidance 
which focused on ensuring that every human-related activity 
that could possibly interfere or disturb hibernating bats is 
regulated or restricted. For example, the Service's guideline 
recommends no trees be cleared during certain times of the year 
within a 5-mile radius of bats; no noise disturbances be 
allowed within a 1-mile radius; no impacting water resources 
flow into bat hibernating areas during winter; no proscribed 
burning; no removal of bats from occupied homes or structures. 
And I just want to highlight that, if anyone has ever had a bat 
in their house, no removal of bats from occupied homes or 
structures. So if you have one flying around your living room, 
or your bedroom, if you ever woke up that way, and I have, 
you----
    Voice. So have I.
    Mr. Perry [continuing]. Turn the light back off and roll 
back over and go to sleep, you and the bat are going to coexist 
in your house. No use of pesticides or herbicides, and no wind 
turbine operations that could harm the bats. Additionally, many 
state entities have not been included in the administration's 
review process, and I believe that the proposed listing may go 
too far. Our own Pennsylvania Game Commission recently stated 
the measure would inhibit many forest management activities, 
and have major adverse impacts to the state's ability to manage 
our lands for the diversity of wildlife species under our 
jurisdiction. That is our own Game Commission, and the 
diversity of all wildlife species under their jurisdiction. I 
hope we can simply take a closer look at the Endangered Species 
Act and ensure that all proposed decisions to list a species be 
met with scientific data and not a knee jerk reaction. The 
proposed listing could mean significant changes to 
Pennsylvania's economy and energy industry and jobs, while most 
importantly doing little, if absolutely anything, to help the 
declining population of Long Eared Bats.
    I look forward to hearing the expert witnesses, and thank 
Chairman Hastings and Mr. Thompson for bringing this important 
issue right to Pennsylvania. Thank you, Mr. Chairman.
    The Chairman. I thank the gentleman for his statement. And 
for those of you that--and I thank both of you for your 
sentiments on my leaving Congress. I am finishing 10 terms in 
Congress and not seeking reelection, but I just want to remind 
my colleagues I am not dead yet, and I have until--I think I 
have until 11:59 on January 3 before my term is completely 
over, so I intend to be active until that time.
    I want to welcome the panelists in front of us, and just 
kind of lay the ground rules. You see this timing light up 
here. I assume you can read that on the other side, is that 
correct? Can you read that on the other side? Yes. Well, is 
that showing on the other side?
    Voice. Yes.
    The Chairman. OK, you can see it? All right, what that 
simply means is that we have--ask all of you to keep your oral 
opening remarks within a 5-minute time period. Now, your 
written remarks are part of the statement, so your full written 
remarks are there, and if you could summarize or whatever you 
want to highlight within that, we appreciate that very much. 
And for those of you in the audience that aren't on the panel, 
and obviously, those of you in the audience aren't on the 
panel, there are comment forms at the entrance to this room, 
and you can comment on that and send that in, or you could go 
to our Web site which is www.naturalresources.house.gov, under 
``Contact Us,'' and make a statement. So we would like to hear 
from you in that regard.
    Now, we do have a distinguished--and by the way, the way 
that 5-minutes works is, if the green light is on, then that 
means, boy, you are just doing swimmingly well. And then the 
yellow light comes on, and that means you are down to a minute. 
And it is kind of like a traffic light; when the red light 
comes on, you need to speed up or stop, one or the other. So 
that is how that whole--all works. Now, obviously, we want you 
to make sure you complete your statement, but that is kind of 
the ground rules.
    Now, we do have a distinguished panel. Let me introduce all 
of you and then we will go and introduce each of you for your 
statement. We have The Honorable Jeff Pyle who represents the 
60th District in the House of Representatives, and I understand 
that is Armstrong, Indiana and Butler Counties. Mr. Russ 
Biggica. Did I say that correct? I did? Director of Government 
and Regulatory Affairs with the Pennsylvania Rural Electric 
Association. Mr. Louis D'Amico, President and Executive 
Director of the Pennsylvania Independent Oil and Gas 
Association. Mr. Jim Brubaker, Board Member for the 
Pennsylvania Farm Bureau, Union County Farmer out of Lewisburg, 
Pennsylvania. Mr. John Stilley, Owner and President of 
Amerikohl Mining in Butler, Pennsylvania. Ms. Mollie Matteson, 
Senior Scientist for the Center for Biological Diversity out of 
Richmond, Vermont. Mr. Martin Melville, Owner of Melville 
Forest Services in Centre Hall, Pennsylvania, and Mr. Paul 
Lyskava, Executive Director of the Pennsylvania Forest Products 
Association here in Harrisburg.
    And with that, let me recognize Representative Pyle, I knew 
I would get that, I--see how fleeting time is? You just never 
know. Mr. Pyle, you are recognized for 5 minutes, and once 
again, your full statement will appear in the record.

STATEMENT OF THE HONORABLE JEFF PYLE, REPRESENTATIVE, DISTRICT 
 60, PENNSYLVANIA HOUSE OF REPRESENTATIVES, ARMSTRONG, INDIANA 
                      AND BUTLER COUNTIES

    Mr. Pyle. Thank you very much, Chairman, and don't let that 
confusion bother you. Us House Reps guys normally don't get 
invited into Senate hearing rooms, so thanks for that.
    I am going to summarize my written remarks and try to be 
quick and draw directly from them.
    My name is Jeff Pyle, I represent the 60th Legislative 
District of Pennsylvania. As the Chairman pointed out--
Armstrong, Butler and Indiana Counties, which is roughly 200 
miles west of here. Our county is bisected directly in half by 
the Allegheny River which is a whole other ESA issue, but not 
for now.
    At hand is an increase in the protections and 
classifications of the Northern Long-Eared Bat, and as all 
three of the congressmen present beautifully summarized, they 
are being slain by White Nose Syndrome in things that can be 
roughly likened to a Biblical plague. The mortality rates are 
in the upper nineties. Here is the weird part about it. The 
White Nose Syndrome is transmitted only by actual physical 
touch. Well, if you know how bats conserve heat in their 
hibernacula, in their cage or in their dwellings, they huddle 
together because there is almost no fat on a bat, and when they 
do this huddling, this White Nose Syndrome transmits one to 
another throughout the entire colony of bats in very little 
time. What I am telling you is they instinctively pass this 
back and forth between each other and can't stop.
    Now, we have looked at White Nose Syndrome in this 
Commonwealth for a good 10 years. I suppose why I am here is 
because of our experiences with the Indiana Bat. A few years 
ago, Ford City and Kittanning, which are both towns in 
Armstrong County, decided to consolidate high schools, and I 
kid you not, after 100 years of Ford City being in existence. A 
family stepped up, donated a whole bunch of land up in the 
perfect location on a mountaintop separating two towns that 
have had a blood feud reminiscent of the Hatfield and McCoys 
for a very--how Dad from Kittanning met Mom from Ford City was 
just--nobody can figure it out. Anyway, we go up to build this 
school, and the next thing we know, there are people from U.S. 
Fish and Wildlife Service and they said, well, you can't build 
right there, you are in a bat range, and we said, what do we 
have to do, and they had us hang the gigantic mist nets for 
hundreds and hundreds of yards in the trees, and they stayed up 
there, I know my testimony says weeks, but upon further review 
it was actually months, and they didn't catch any bats. So we 
are figuring that is great, let's get this school built. This 
is kind of cool. My eldest daughter will be the last graduating 
class from Ford City High School, and my youngest will be the 
first graduating class from the new Armstrong High School. I 
think this is a great opportunity, but that wasn't meant to be.
    Apparently, for us to be able to put up our new school, 
which is paid for by taxpayer money, this is not coming out of 
a private company or a big evil corporation, these are 
taxpayers, for us to be able to get a permit to move ground up 
on top of that hill they said that is fine, give us $60,000 so 
we can go buy offset acreage somewhere else so the bats can 
play and reproduce and frolic and do what bats do; eat bugs. 
And as a side note, Mr. Chairman, my cousin, Kenny, used to eat 
bugs, but that is neither here nor there.
    Here is the crux of the matter. Take this the right way, 
and I mean no disrespect. You have created a government within 
a government. These people are self-regulating through the use 
of promulgated rules. You don't even know when they are coming. 
I will give you an example. A couple of years ago here in 
Pennsylvania, with our own Game Commission, there was talk of 
them classifying the Little Brown Bat on this list. Most people 
know that as the Common House Bat, and as was brought up in the 
early intros, I have had bats in my houses, and as I told this 
gentleman, I haven't played tennis for 20 years, but that old 
Wilson is still in the corner because we have had a lot of bats 
come through the house. And when your wife is sleeping with 
your 6-month-old, everything else pales except getting that bat 
out of the room.
    I see the yellow light on so I am going to try to get it 
very closely wound down here.
    Here is the deal, boys. Until you change ESA, they can 
pretty much do whatever they want to do, and that big green 
blotch up there represents about one-third of North America, if 
I am not mistaken. At what point does homo sapien start to 
matter? They are telling people who have owned family land for 
over 200 years in Armstrong County that they can't take down 
their own timber for 5 months a year, that happened to be right 
over the heart of summer when you can go cut timber. Are you 
kidding? Sir, at some point--and I love the animals as much as 
anybody. Some I find cute and cuddly, and some I find 
delicious, but--and I see the red light on, so thank you very 
much for your time.
    I would love to answer any questions. Thank you, Mr. 
Chairman.

    [The prepared statement of Mr. Pyle follows:]
  Prepared Statement of the Hon. Jeffrey Pyle, State Representative, 
    Pennsylvania House of Representatives, 60th Legislative District
    Good morning. My name is Jeffrey Pyle. For the last 10 years I have 
served the good people of the 60th Legislative District (Armstrong, 
Indiana and Butler Counties) in the Pennsylvania State house. During 
this tenure, I have served on our Environmental Resource and Energy 
Committee for a decade and currently chair its subcommittee on mining 
and as the majority member on the Mining Reclamation Advisory Board. 
From these roles and others I have become quite familiar with today's 
topic and hope that my time here is seen by the esteemed panel as 
informative and helpful.
    I'm told the purpose of this hearing is a change in listing for the 
Northern Long-Eared bat. I suppose I've been called because of my 
experience with another federally endangered bat, the Indiana bat. 
Before I can fully explain this, a bit of background is necessary. My 
home is Armstrong County which lies roughly 200 miles west of 
Harrisburg, northeast of Pittsburgh. Armstrong County is bisected 
almost in half lengthwise by one of the rivers that forms the Ohio in 
Pittsburgh, the Allegheny River. The Allegheny is a global oddity--one 
of only two gravel bottom rivers in the World due to its role as a main 
drainage channel for the retreating glaciers during the last Ice Age. 
The County is blessed by abundant agriculture, ample water supplies, 
broad blanket forests, tremendous coal, shallow gas, shale gas, various 
rock aggregates and 70,000 of the most red, white and blue Americans 
you will ever meet. We are former rust belt that has not recovered but 
are doing our best with what we've got. A huge part of our citizens' 
employment is in natural resource recovery of the aforementioned. It is 
not an exaggeration to say that a few years ago, before the Clean Air 
Act killed our power plant, we heated the East Coast and never failed 
to make the lights come on. The county seat and largest town is 
Kittanning (pop. 4600) and its second largest is Ford City (pop. 3400) 
just 3 miles away. Two years ago, a new school board voted to close 
each town's high school and build a new combined one for both towns' 
students on a location high upon a mountain separating both towns and 
gazing over miles of the Allegheny and the first new school for 
Kittanning since 1955 and Ford City since 1908. A generous donation of 
hundreds of acres of land by a family dedicated to education would be 
the site. That's when I learned about the Environmental Protection 
Agency's federally protected endangered Indiana bat.
    When the architects and engineers first entered the site to survey 
and what not, they were informed the building site was in a zone 
inhabited by federally protected Indiana bats and that special 
procedures would be needed at, of course, the school district's 
expense. This entailed doing a bat study in which finely meshed mist 
nets would need to be hung over hundreds of yards from the trees to 
accurately measure the presence on the property of Indiana bats and 
determine the remediation efforts that would be required. A few weeks 
after the nets were hung, they were studied and it was found that there 
were no bats BUT because the building site was located in their 
presumed feeding range, there would have to be considerations made by 
the school district to the EPA so that we could build the school. It 
seemed to matter not that no bats were found; for us to build our 
school, it would cost us a little over $60,000 so that the EPA could go 
purchase and set aside land somewhere else for the Indiana bats since 
our new school building apparently disturbed their ability to frolic 
and prosper even though they weren't there at the time. No bats, no 
problem--pony up $60K and you can fire up the dozers. That's how it 
went down.
    All bat populations in the Commonwealth are currently experiencing 
their own Ebola-like plague called White Nose Syndrome. It is viral in 
nature and thus defies and escapes our ability to cure it. From what we 
know of it, it started up in New England and worked its way down the 
Appalachians to us. It is not harmful to humans but does a real number 
on bats who, instinctively, huddle very close together to conserve body 
heat. Therein is the transmission point of the virus. Like Ebola, it is 
instinctual direct huddling and touch of an infected bat to another and 
after that, they're going to die in amazingly high percentages. We've 
seen it here in Pennsylvania and cannot stop it. We've had researchers 
at our universities look for a cure and they haven't found it yet. 
White Nose Syndrome will continue to work its way down the mountains 
until roughly 85 percent of all the bat population on the East Coast is 
decimated. To sum up, their instincts encourage them to transmit an 
incurable virus among themselves and they are going to be nearly wiped 
out and we can do almost nothing about it. That's the straight hard 
facts.
    If the EPA's classification of the Northern Long-Eared bat rises, 
there will be changes to how you live your lives. As I learned from a 
former PA Department of Environmental Protection administrator who now 
holds a prestigious position in Pittsburgh with an environmental 
lobbying group, it's not whether the bats live there or not (as 
happened to us), it's about habitat--could the endangered bat in 
question utilize the area to re-establish itself and come back to a 
healthy population. It is rhetorical in nature as the White Nose 
Syndrome will do exactly as has been described but it has not deterred 
neither the EPA nor the PA Game Commission (who administers our 
endangered species program and tells everyone it's the DEP) who, 
nonetheless, have drawn the ``supposed'' ranges of the bats in large 
outlines all over a map of the Commonwealth. Within those boundaries, 
those ranges, anyone wishing to perform seemingly any kind of outdoor 
activity must submit to the conditions prescribed by our various rule 
promulgating agencies because of being located in the bat's yard. Great 
trouble is encountered in that bats, being airborne creatures, move 
over great distances and create immense outlines where human activity 
is highly regulated. To compound the great range, the roosting of the 
various bat species takes place in abandoned homes, trees and just 
about anywhere that's got a half-inch crack that will let them stay 
dry. Those are also protected places which puts our ability to tear 
down urban blighted properties. To limit human activity within a 3 to 
10 mile radius of every pine tree (where little Brown bats roost) in 
Pennsylvania covers just about the whole place and again, it's not 
whether or not you find the endangered creature there, it's could they 
live there? If my testimony has angered any of these agencies enough 
for them to take a closer look at Armstrong County, they will find that 
our abundant food and water sources, coupled with a rugged hill and 
valley strata covered by dense forest, would be an ideal habitat for 
Bigfoot. Using the ``we don't have to actually find them, just call it 
habitat and extort huge fees that jeopardize jobs'' approach currently 
in use, they could do it and the part with which you should concern 
yourselves with is how you, the House of the people, can't stop them.
    EPA is a rule promulgating agency just like the Pennsylvania Game 
Commission and Fish and Boat Commission. In short, they can make rules 
that hold the force of law without you even knowing unless you monitor 
and read the correct bulletins. Executive directors execute these rules 
at the behest of the appointed EPA administrator or game commissioners. 
In Pennsylvania, these game commissioners are chosen by the Governor's 
nomination and our Senate's confirmation. At no time does that House of 
Reps have any role in any of the process. Of interest to this 
discussion is that our game commissioners are non-elective yet hold the 
power to make rules that hold the force of law. To point, in addition 
to the Federal EPA's endangered list, the Commonwealth maintains an 
additional list of threatened or endangered species that they consider 
endangered. I say ``they'' because none of the listings are ever 
subjected to a governmental OR public vote. They can just do it and 
they do. As a personal note, I see no salient logic as to why the state 
snake of Arizona (the massasauga rattlesnake) is a protected species in 
Pennsylvania. Using the same logic, we better get cracking on 
designating the Timber Wolf and Buffalo because I'm sure both lived 
here a long, long time ago.
    I recently offered legislation that would have required the 
Commonwealth's handling of species of concern in a more open manner. 
One of the things my bill would have done was require our Game 
Commission and Fish and Boat Commissions to open up their confidential 
database of identified species locations to allow interested developers 
to learn whether or not the land being considered for development 
hosted endangered species that would require additional financial 
investment to establish the dictated remediations. I felt it served the 
spirit of caveat emptor--the buyer beware--and allow them to do their 
due diligence of quantitative and qualitative data from a confidential 
protected database PRIOR to the execution of sale on the property. It 
struck me as innately fair--one does not buy a car without kicking the 
tires. The measure was strongly opposed by mainly west coast 
environmental groups and their Pennsylvanian chapters who emailed with 
vengeance that this part of the bill made me a genocidal maniac and 
once created a picture of me in a Batman costume standing in front of 
scorched Earth (not buff Batman--the Adam West batman). Apparently I 
struck a nerve as their goal, as a rulemaking agency that holds force 
of law without accountability to the public in any shape or fashion, 
was to protect their ability to ``ambush'' developers with financial 
demands but these couldn't be made until after the purchase was 
finalized. Being a genocidal maniac I can't really speak from 
authority, but that's just how the 10-year observation appears.
    Panel, my family has lived in Armstrong County since before it was 
Armstrong County (1803). We have farmed its fields, dug its coal, made 
its steel and taught its kids for over 200 years. Whenever our Nation 
called us to go fight we did and often spilled blood the whole way from 
Germantown and Antietam to Kuwait. To think that a distant unelected 
body can dictate to us when we can and cannot cut our standing timber 
on our own land according to a bat's mating schedule is simply 
preposterous. It wouldn't be so bad if there was some kind of recourse 
to protest these rulings made so far away by people who have never been 
here who really don't give a hoot whether the citizens of Armstrong 
County have jobs is wholly and comprehensively unacceptable. The ESA 
encourages us, who have such a dynamic and deep grasp of patriotism, to 
become lawbreakers in the Nation we've gone to fight for. It has to 
stop. That folks who don't live here can profess to know what's best 
for us is ridiculous and exposes to me only one thing: ideological 
positioning and defense for animals that don't affect the area and 
people who live around them exposes only their hollow ``supremacy'' 
that they cannot justify when questioned. Seriously, do you think 
Philadelphia would shut down Independence Mall if they found an 
endangered bat there? I think not.
    It defies logic that our care for one animal has become so trivial. 
We know we cannot cure white nose syndrome yet nonetheless, we advance 
a ruling on yet another species that means more than homo sapien.
    Thank you for your time and attention and I eagerly await your 
questions should you have any.

                                 ______
                                 

    The Chairman. Thank you very much, Representative Pyle. We 
appreciate your testimony.

    Mr. Biggica, you are recognized for 5 minutes.

STATEMENT OF RUSS BIGGICA, DIRECTOR, GOVERNMENT AND REGULATORY 
 AFFAIRS, PENNSYLVANIA RURAL ELECTRIC ASSOCIATION, HARRISBURG, 
                          PENNSYLVANIA

    Mr. Biggica. Thank you, Mr. Chairman, and good morning to 
you and to the committee members. My name is Russ Biggica and I 
am the Director of Legislative and Regulatory Affairs at the 
Pennsylvania Rural Electric Association, and I appreciate the 
opportunity to address you today.
    The National Rural Electric Association has submitted 
comments to the U.S. Fish and Wildlife Service, which I have 
submitted to the committee, and we, the Pennsylvania Rural 
Electric Association, appreciate this opportunity.
    Let me first quickly explain our organizational chart. 
NRECA is the national service organization for more than 900 
not-for-profit rural electric cooperatives that provide 
electricity to 42 million people in 47 states. As for us in 
Pennsylvania and New Jersey, we supply electricity and 
distribution services to more than 230,000 rural households and 
businesses, representing more than 600,000 consumers. The 13 
rural electric cooperatives in Pennsylvania alone own and 
maintain 13 percent of the electric distribution lines in the 
state, covering nearly one-third of the Commonwealth's land 
area in 42 of 67 counties in Pennsylvania. Cooperatives in 
Pennsylvania average about 7 consumers per mile, while 
investor-owned utilities, as an example, average anywhere from 
30 to 40 customers per mile.
    As a side point, rural electric cooperatives have the 
lowest electricity rates in both states.
    PREA and NRECA understand the Fish and Wildlife's concerns 
for the Northern Long-Eared Bat presented by the disease, the 
White Nose Syndrome, as outlined in this proposal. While there 
may be compelling reasons for listing the bat as threatened and 
endangered, all rural electric cooperatives affected have 
concerns regarding the guidelines for its compliance as it 
relates to the proposed listing. Our concern centers on 
electric cooperatives' obligations to public safety, 
maintaining electrical reliability, and legal requirements 
under the Energy Policy Act of 2005 and NERC's vegetation 
management standards, which I have outlined in our submitted 
comments.
    To summarize our concerns, the bat's habitat, including 
suitable roost trees, may occur in or near electric utility 
rights-of-way posing a risk to power lines. Electric 
cooperatives identify and remove these danger trees that are 
growing into power lines, or at risk of falling into a power 
line, every year, often on an emergency basis. Co-ops remove 
danger trees throughout the spring, summer and fall months, 
when access is possible and some of the heaviest demands on our 
electric system occur. Unfortunately, Committee, this is the 
same time that the bats occupy them as well.
    If the Fish and Wildlife Service lists the Northern Long-
Eared Bat as endangered, rural cooperatives have concerns that 
the prohibitions of the unauthorized take of listed species and 
habitat will be at odds with electric cooperatives' public and 
legal obligations to remove danger trees in order to maintain 
the safety and reliability of power lines. NRECA, our national, 
believe this listing will affect potentially 650 distribution 
co-ops and G&Ts within the bat's 39 or 38-state range. The 
importance instead of this problem requires a national solution 
for electric cooperatives.
    Because of what we see as a potential conflict between 
requirements to maintain reliable power by removing certain 
trees or other vegetation that threatens transmission and 
distribution lines, and the requirement to protect listed 
species and their habitat, rural electric cooperatives are 
committed to working with the Fish and Wildlife Service and 
other immediate stakeholders to develop such a result.
    In closing, I wish to thank the committee for allowing PREA 
to comment and offer dialogs toward a solution. The 
Pennsylvania and New Jersey cooperatives and its members 
believe that rural electric cooperatives must do their part in 
protecting the environment, while at the same time ensuring for 
safe and reliable electric service to the rural communities 
they serve. We believe this commitment may continue by actively 
working with the Fish and Wildlife Service to develop and 
ensure that an effective commonsense approach is taken for the 
overall protection of the Northern Long-Eared Bat, at the same 
time, allowing cooperatives the opportunity to protect and 
serve their consumers.
    Thank you, Mr. Chairman.

    [The National Rural Electric Cooperative Association 
comments submitted for the record by Mr. Biggica follow:]
             Letter Submitted for the Record by Mr. Biggica

   National Rural Electric Cooperative Association,
                                       Arlington, VA 22203,
                                                   August 29, 2014.

Public Comments Processing
ATTN: FWS-R5-ES-2011-0024
Division of Policy and Directives Management
U.S. Fish and Wildlife Service
4401 Fairfax Drive, MS 2042-PDM
Arlington, VA 22203

Submitted Electronically via eRulemaking Portal to FWS-R5-ES-2011-0024

SUBJECT: Comments on Listing the Northern Long-Eared Bat as an 
        Endangered Species; Proposed Rule, 78 Fed. Reg. 36698 (June 30, 
        2014), Docket No. FWS-R5-ES-2011-0024

    The National Rural Electric Cooperative Association (NRECA) 
respectfully submits the following comments in response to the above-
referenced notice and request for comment from the U.S. Fish and 
Wildlife Service (FWS). We appreciate the opportunity to submit 
comments on the proposed rule to list the Northern Long-Eared Bat 
(NLEB) as an endangered species under the Endangered Species Act of 
1973, as amended (ESA).
    NRECA is the national service organization dedicated to 
representing the national interests of cooperative electric utilities 
and the consumers they serve. NRECA is the national service 
organization for more than 900 not-for-profit rural electric utilities 
that provide electric energy to over 42 million people in 47 states or 
12 percent of electric customers. The vast majority of NRECA members 
are not-for profit, consumer-owned cooperatives. NRECA's members also 
include approximately 65 generation and transmission cooperatives, 
which generate and transmit power to 668 of the 838 distribution 
cooperatives. The G&Ts are owned by the distribution cooperatives they 
serve. Remaining distribution cooperatives receive power directly from 
other generation sources within the electric utility sector. The 
typical distribution co-op is a small business that serves 13,000 
consumers. Electric cooperatives own and maintain 2.5 million miles or 
42 percent of the nation's electric distribution lines, covering 75 
percent of the U.S. landmass. Both distribution and G&T cooperatives 
were formed to provide reliable electric service to their owner-members 
at the lowest reasonable cost.
    NRECA understands the FWS's concerns for the NLEB presented by the 
disease white-nose syndrome as outlined in the proposed listing. While 
we agree that there are compelling reasons for listing the NLEB as 
threatened or endangered, NRECA has concerns regarding the guidelines 
for compliance with the ``Northern Long-eared Bat Interim Conference 
and Planning Guidance,'' and with the proposed listing of the species 
as endangered. Our concern centers on the electric cooperatives 
obligations to public safety, maintaining electric reliability, and 
legal requirements under the Energy Policy Act of 2005 and the North 
American Electric Reliability Corporation Transmission Vegetation 
Management standards (FAC-003-3).\1\
---------------------------------------------------------------------------
    \1\ http://www.nerc.com/files/FAC-003-3.pdf
---------------------------------------------------------------------------
    NLEB habitat, including suitable roost trees, may occur in or near 
electric utility rights-of-way posing a risk to power lines. Electric 
cooperatives identify and remove these danger trees--any trees that are 
growing into a power line or at risk of falling into a power line--
every year, often on an emergency basis. Co-ops remove danger trees 
throughout the summer months when access is possible and the heaviest 
demands on the electrical system occur, unfortunately at the same time 
as NLEB potentially occupy them. Many of the trees are dead or dying, 
and must be quickly removed to maintain safe and reliable electrical 
power. When conditions are dry, trees near power lines also can cause 
serious fires.
    If the FWS lists the NLEB as endangered, NRECA has concerns that 
the ESA section 9 prohibition of the unauthorized ``take'' of listed 
species will be at odds with electric cooperatives' public and legal 
obligations to remove danger trees in order to maintain the safety and 
reliability of power lines, both transmission and distribution. Illegal 
take can give rise to criminal enforcement, civil administrative 
penalties and civil judicial action for injunctive relief.
    A final listing of the NLEB appears to immediately trigger this 
double jeopardy issue with one regulatory agency requiring a utility to 
trim or remove vegetation (NERC) and another regulatory agency 
preventing a utility from doing so (FWS). NRECA believes this listing 
will affect potentially 650 distribution co-ops and G&Ts within the 
NLEB's 39-state range. The importance and extent of this problem 
requires a national solution for electric cooperatives.
    Because of what we see as a potential conflict between two legal 
requirements--the requirement to maintain reliable power by removing 
certain trees or other vegetation that threaten transmission and 
distribution lines and the requirement to protect listed species and 
their habitat--NRECA recommends that FWS work with electric 
cooperatives to identify a means by which cooperatives will be able to 
meet both of these legal obligations simultaneously. NRECA is committed 
to working with the FWS and other immediate stakeholders to develop 
such a result.

            Sincerely,

                                   Carol E. Whitman, Ph.D.,
                                      Senior Legislative Principal,
                                              Environmental Issues.

                                 ______
                                 

    The Chairman. Thank you very much, Mr. Biggica. I 
appreciate your testimony.
    Mr. D'Amico, you are now recognized for 5 minutes.

 STATEMENT OF LOUIS D'AMICO, PRESIDENT AND EXECUTIVE DIRECTOR, 
  PENNSYLVANIA INDEPENDENT OIL AND GAS ASSOCIATION, WEXFORD, 
                          PENNSYLVANIA

    Mr. D'Amico. Thank you. Good morning and thank you, 
Chairman Hastings, Congressman Thompson and Congressman Perry.
    My name is Lou D'Amico and I am President and Executive 
Director of the Pennsylvania Independent Oil and Gas 
Association, otherwise known as PIOGA. I appreciate the 
opportunity to be here today, and want to provide this brief 
statement concerning my written testimony----
    The Chairman. Mr. D'Amico, did you press the--turn the 
microphone on there?
    Mr. D'Amico. Yes.
    The Chairman. It is on?
    Mr. D'Amico. Yes.
    The Chairman. OK, you have to get a little bit closer.
    Mr. D'Amico. Is that better?
    The Chairman. That is much better, thank you.
    Mr. D'Amico. All right. I will be the first to admit that 
our industry faces legitimate development issues, but the U.S. 
Fish and Wildlife Service's listing of the Northern Long-Eared 
Bat is not one of them.
    I use the term fiasco intentionally because I am amazed 
that the Service continues down the path to endangered listing 
for this bat, in spite of its own conclusions that objectively 
point the other way. If I were a part of the Service's effort 
on this, I would be embarrassed that this matter has proceeded 
this far and that this hearing is even required.
    Detailed in my written testimony, the Service admits that 
the White Nose Syndrome, which is a fungal disease discovered 
in New York in 2006, with currently no known cure, alone has 
led to dramatic and rapid population level effects on the NLEB. 
The Service also admits that oil and gas exploration and 
development activities do not have population-level effects on 
the bat, even when combined with the effects of all other land 
development activities throughout the Northern Long-Eared Bat's 
range. The Service also admits that the White Nose Syndrome 
Disease has spread to only a portion of the range of the 
Northern Long-Eared Bat. Significant impacts to the species 
from the disease have been reported only in a fraction of that 
portion of the range, and the Northern Long-Eared Bat continues 
to be prevalent in a majority of its broad 38-state range, 
regardless of the impacts of White Nose Syndrome, and of 
course, any impacts from land development activities including 
oil and gas development. Numerous state government commentators 
have already explained in their comments that White Nose 
Syndrome has little or no effect on the bat in many areas where 
it has been detected, and my written testimony explains why the 
NLEB's population outside of the limited areas where White Nose 
Syndrome reportedly has affected the species is more than 
sufficient to be resilient to White Nose Syndrome.
    Finally, the Service's principle tool to aid the recovery 
of listed species is habitat protection. So, typically, the 
Service designates critical habitat when listing a species, but 
the Service has not designated critical habitat as part of this 
listing. The Service could hardly do otherwise in view of its 
admission that even if all habitat-related stressors were 
limited--eliminated or minimalized, the significant effects of 
White Nose Syndrome on the Northern Long-Eared Bat would still 
be present.
    In closing, PIOGA urges the committee to do everything in 
its power and within the power of its individual members to 
correct the wrong course the Service is on, and require the 
Service to identify methods for the management of White Nose 
Syndrome and protection of the Northern Long-Eared Bat from its 
effects, other than listing the NLEB as endangered or even 
threatened.
    Thank you for allowing me to speak today.

    [The prepared statement of Mr. D'Amico follows:]
  Prepared Statement of Lou D'Amico, President & Executive Director, 
             Pennsylvania Independent Oil & Gas Association
    My name is Lou D'Amico and I am the President and Executive 
Director of the Pennsylvania Independent Oil & Gas Association 
(``PIOGA''). I am grateful for the invitation to testify today before 
the committee regarding the proposed listing of the northern long-eared 
bat (NLEB) as endangered under the Endangered Species Act (ESA) by the 
U.S. Fish and Wildlife Service (FWS).
    PIOGA is a non-profit trade association, with nearly 1,000 members, 
representing Pennsylvania independent oil and natural gas producers, 
marketers, service companies and related businesses, landowners and 
royalty owners. PIOGA members are subject to Federal and state laws for 
the protection of listed bat and other protected species. The 
association and our members have a direct interest in FWS's proposal to 
list the NLEB as an endangered species, given the oil and gas 
development and production operations that PIOGA's members are 
undertaking within the potential range of the NLEB in Pennsylvania. 
These operations, including clearing trees and building roads, are 
constrained and directed by environmental laws regarding permits and 
species protection, as well as by property and contract law.
    The economic benefits from the oil and gas industry have been 
described as economically ``transformative'' for not only Pennsylvania 
communities, but for those across the country who are the beneficiaries 
of abundant and stable natural gas supplies. It is estimated that the 
oil and gas industry operating in the Marcellus Shale region employs 
232,000 people with an average salary of $83,000 per year. Between 2010 
and 2012, approximately $31.5 billion dollars were invested in the 
region as a result of industry activity, with $1.8 billion in state tax 
revenue generated since 2006.
    In addition, the energy generated in the Marcellus Shale region is 
playing a pivotal role in what has been described as a manufacturing 
renaissance. A recent study from IHS Global Insight entitled, 
``America's New Energy Future: The Unconventional Oil and Gas 
Revolution and the Economy--Volume 3: A Manufacturing Renaissance,'' 
notes the revolutionary economic benefits that have accrued to 
households, communities, and manufacturers across the country as a 
result of this stable and plentiful supply of energy. The most recent 
update to the study includes the following significant national 
economic impacts of this development:

     Unconventional oil and gas will steadily increase U.S. 
            competitiveness, contributing $180 billion to the U.S. 
            trade balance by 2022.

     Increased disposable household income by $1,200 in 2012, 
            rising to $3,500 in 2025;

     Generated $74 billion in government revenues in 2012, 
            rising to $138 billion in 2025;

     Attracted U.S. capital investments totaling $121 billion 
            in 2012, rising to $240 billion by 2025;

     Contributed $284 billion to the U.S. GDP in 2012, rising 
            to $533 billion by 2025; and Supported $150 billion in 
            earnings for U.S. workers in 2012, rising to $269 billion 
            by 2025.

    PIOGA believes this background of Marcellus Shale development and 
its driving role in creating tremendously significant economic benefits 
both regionally and nationally are an important context as the 
committee considers the potential impacts of a listing decision 
regarding the NLEB.
I. The proposed listing of the NLEB is not based on the best available 
        scientific and commercial data.
    PIOGA, together with the Pennsylvania Chamber of Commerce, 
commented on FWS's proposed listing of the NLEB. A copy of those 
comments is provided for the record as Attachment No. 1 to this 
testimony. In those comments, we expressed our deep concern that the 
proposal was not based on the best available scientific and commercial 
data, as the ESA requires. As we noted, the proposal is based on 
numerous unpublished studies and sources of data that have not been 
peer reviewed. We urge the committee to use its influence to ensure 
that this substantial deficiency in the proposal is corrected. The 
ESA's requirement that FWS base its listing decisions on the best 
available scientific and commercial data available is the most 
important check on FWS's authority and FWS should not be allowed to 
ignore it.
II. Section 7(a)(4) conferencing reviews and conferences should not be 
        required.
    In the meantime, even though the proposal is not based on the best 
available data and even though it has not been finalized, this 
committee should be aware that the proposal is already significantly 
adversely impacting the operations of our member companies. This is 
because FWS has instructed its field offices and other Federal action 
agencies to conduct--pending the finalization of its proposed listing--
costly and time consuming ESA Section 7(a)(4) conferencing reviews for 
all activities proposed to take place within the NLEB's 39 state range 
(including D.C.) to determine if the proposed activity likely will 
jeopardize the continued existence of the NLEB, and to initiate a 
conference even if the activity is not likely to jeopardize the NLEB. 
This conferencing requirement--which requires coordination between at 
least two Federal agencies, evaluation of environmental studies and 
data, and legal and scientific analysis--has already needlessly and 
unlawfully imposed substantial expense and delays on oil and gas 
operators.
    This conferencing requirement is also clearly contrary to FWS's 
regulations and guidance. FWS regulations define ``jeopardize the 
continued existence of'' to mean ``to engage in an action that 
reasonably would be expected, directly or indirectly, to reduce 
appreciably the likelihood of both the survival and recovery of a 
listed species in the wild by reducing the reproduction, numbers, or 
distribution of that species.'' 50 C.F.R. Sec. 402.02. Moreover, FWS's 
Endangered Species Consultation Handbook (pp. 4-36) provides that 
jeopardy determinations must be based on the effects of the proposed 
action to the entire population of a species range-wide: ``Adverse 
effects on individuals of a species . . . generally do not result in 
jeopardy determinations unless that loss, when added to the 
environmental baseline, is likely to result in significant adverse 
effects throughout the species' range.'' As explained below, FWS has 
already reached conclusions that preclude a ``jeopardy determination.''
    In February of this year, PIOGA joined with eight other 
organizations in filing an emergency petition with FWS for an exemption 
for the oil and gas industry from the conferencing requirement. A copy 
of that petition, which requested action within 30 days and to which 
FWS has not responded, is provided for the record as Attachment No. 2 
to this testimony.

    In the petition, PIOGA and the other organizations made the 
following points:

  1.  Section 7(a)(4) requires conferences between a project proponent 
            and FWS only if it is determined that the proposed 
            activity--not just any cause, such as a disease--is likely 
            to jeopardize the continued existence of a species proposed 
            for listing, pending the finalization of the listing.

  2.  In the course of developing its listing proposal for the NLEB, 
            FWS has already concluded that oil and gas exploration and 
            development activities do not have population-level effects 
            on the NLEB, even when combined with the effects of all 
            other land development activities throughout the NLEB's 
            range. As FWS explained in its proposed listing, it is the 
            white-nose syndrome ``alone [that] has led to dramatic and 
            rapid population level effects on the'' NLEB. 78 Fed. Reg. 
            61072. Accordingly, it is beyond dispute that the white-
            nose syndrome and not the effects of oil and gas activities 
            is responsible for the decline of the NLEB.

  3.  In light of this conclusion, neither the FWS nor the other 
            Federal action agencies can reasonably or lawfully 
            determine that any proposed oil and gas activity will 
            likely jeopardize the NLEB.

  4.  Therefore, the proponents of oil and gas activity should not be 
            subjected to the section 7(a)(4) conferencing requirements 
            before they can proceed with their projects.

    Accordingly, PIOGA urges the committee to use its influence to get 
FWS to immediately issue a programmatic finding of ``no jeopardy'' for 
all oil and gas exploration and development activities to be undertaken 
within the NLEB's range before a final listing decision is made for the 
species. This action is necessary to put an end to the substantial 
costs that FWS is needlessly and unlawfully imposing on oil and gas 
operators and, ultimately, on the consumers of their products. 
Alternatively, FWS should grant the previously requested exemption, 
which would produce the same result.
    The FWS's recently finalized (July 1, 2014) ``rule'' or ``policy'' 
interpreting the phrase ``significant portion of its range'' does not 
support listing the NLEB or requiring the Section 7(a)(4) conferencing 
reviews, even if the policy were applied here, which it shouldn't. The 
lone population level risk to the NLEB--WNS--is confined to only a 
portion of the species' range, and the species has reportedly incurred 
significant effects from WNS in only a fraction of that area. Moreover, 
as numerous state government commentators have explained, WNS has had 
little or no effect on the NLE bat in many areas where it has been 
detected. Accordingly, the best available science demonstrates that the 
NLEB's population outside of the limited areas where WNS reportedly has 
affected the species is more than sufficient to be resilient to WNS or 
any other potential impact. For example, the administrative record 
makes clear that (i) the species' viability does not depend on the 
productivity of the population in any portion of the NLEB's range and 
(ii) the population in the remainder of its range can maintain a 
sufficient growth rate to persist on its own.
    Nor does the segment of the NLEB population that has been affected 
by WNS contain important elements of genetic diversity without which 
the remaining population may not be genetically diverse enough to adapt 
to changing environmental conditions. If anything, the fact that NLEBs 
outside of the Northeast have not experienced significant impacts from 
WNS in areas where the disease is present suggests that the opposite is 
true. Put simply, there is no basis for the FWS to invoke its new 
``significant portion of its range'' policy to support listing the NLEB 
or requiring Section 7(a)(4) conference reviews.
III. The ESA is ill-suited to deal with the threat to the NLEB's 
        existence caused by the white-nose syndrome.
    The principal tool provided to FWS to aid in the recovery of listed 
species is habitat protection. Typically, FWS will designate critical 
habitat for a species and all Federal activities in that habitat will 
then have to insure that they do not destroy or adversely modify that 
habitat. That conventional approach does not fit the challenge posed by 
white-nose syndrome to the NLEB.
    Our members are concerned that if habitat protection is made the 
focus of a recovery plan for the NLEB, it will needlessly restrict 
their activities without benefiting the NLEB. As FWS has stated, the 
NLEB ``is in danger of extinction, predominantly due to the threat of 
white nose syndrome'' (emphasis added). 78 Fed. Reg. 61046. As FWS 
acknowledges, ``[e]ven if all habitat-related stressors were eliminated 
or minimized, the significant effects of WNS on the northern long-eared 
bat would still be present.'' 78 Fed. Reg. at 61061. The key factor at 
issue is disease, not oil and gas operations or other activities. A 
listing that leads to a recovery plan which concentrates on the 
designation and protection of critical habitat as it relates to oil and 
gas development and other activities is contrary to the express purpose 
of [the] ESA, which is to conserve species.
    We therefore urge the committee to require FWS to work with the 
wide range of public and private organizations that are concerned about 
the NLEB to identify methods other than the listing the NLEB or the 
designation of critical habitat for the management of white-nose 
syndrome and protection of the NLEB from its effects.
Summary
    PIOGA and our member companies believe the proposed listing is 
unsupported by the facts and law and is not justified by the best 
available scientific and commercial data. We also believe that FWS must 
utilize its 6-month extension to subject the data to rigorous and 
transparent review by those in the scientific community, which will 
confirm the lack of scientific and legal justification for listing the 
NLEB.
    Accordingly, we also urge the committee to require FWS to determine 
that Section 7(a)(4) conferencing reviews are unnecessary for oil and 
gas activities in light of the fact--documented by FWS no less--that 
oil and gas development activities will not place the NLEB in jeopardy 
anywhere, much less throughout its range.
    Finally, PIOGA suggests that if any final rule resulting in the 
listing of the species is adopted, it may not lawfully restrict 
activities, such as oil and gas development, that have no casual 
connection to WNS or otherwise threaten or endanger the NLEB.

Attachments

                              ATTACHMENT 1

 [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


                                              December 23, 2013

Via U.S. Mail and Docket Submittal at www.regulations.gov

Public Comments Processing
Attn: FWS-R5-ES-2011-024
Division of Policy and Directives Management
U.S. Fish and Wildlife Service
4401 N. Fairfax Drive, MS 2042-PDM
Arlington, VA 22203

Re: Endangered and Threatened Wildlife and Plants; 12-Month Finding on 
        Petition To List the Northern Long-Eared Bat and the Eastern 
        Small-Footed Bat as Endangered or Threatened Species; Listing 
        the Northern Long-Eared Bat as an Endangered Species--[Docket 
        No. FWS-R5-ES-2011-0024]

    The Pennsylvania Independent Oil & Gas Association (PIOGA) and the 
Pennsylvania Chamber of Business and Industry (PA Chamber) respectfully 
submit the following comments regarding the U.S. Fish and Wildlife 
Service's Status Review and request for comments on its 12-Month 
Finding on a Petition to List the Northern Long-Eared Bat as an 
Endangered Species but not to list the Eastern Small-Footed Bat as a 
Threatened or Endangered Species (the ``Status Review''), as published 
in the October 2, 2013 Federal Register (78 Fed. Reg. 61046).
    PIOGA is a nonprofit trade association, with nearly 1000 members, 
representing Pennsylvania independent oil and natural gas producers, 
marketers, service companies and related businesses, landowners and 
royalty owners. PIOGA members are subject to federal and state laws for 
the protection of listed bat and other protected species. The 
association and our members have a direct interest in the Service's 
proposal to list the northern long-eared bat as an endangered species, 
given the oil and gas development and production operations that 
PIOGA's members undertake within the potential range of the northern 
long-eared bat in Pennsylvania. These operations, including clearing 
trees and building roads, are constrained and directed by environmental 
laws regarding permits and species protection, as well as by property 
and contract law.
    The PA Chamber is the largest broad-based business advocacy 
association in Pennsylvania. Its thousands of members throughout the 
Commonwealth of Pennsylvania employ greater than 50 percent of 
Pennsylvania's private workforce. Its membership ranges from Fortune 
100 companies to sole proprietorships. Headquartered in Harrisburg, the 
PA Chamber serves as the frontline advocate for business on Capitol 
Hill by influencing the legislative, regulatory, and judicial branches 
of state government. Its mission is to improve Pennsylvania's business 
climate for PA Chamber members.
    In summary, PIOGA and the PA Chamber believe that the Service does 
not have a legally or technically adequate basis to list the northern 
long-eared bat as endangered or threatened at this time. The listing 
proposal should be withdrawn or delayed until all current efforts to 
protect the species have been fully considered, and all of the 
assumptions, modeling, and uncertainties have been subject to peer 
review. We support and concur with the comments submitted in this 
matter by our other Pennsylvania extractive industry trade 
associations, the Marcellus Shale Coalition and the Pennsylvania Coal 
Alliance.
Comments

            1. The Status Review and proposed listing
              does not satisfy ESA section 4(b)(I)(A).

    Section 4(b)(1)(A) of the Endangered Species Act, 16 U.S.C. 
Sec. 1533(b)(1)(A), requires listing determinations to be made on the 
basis of the ``best scientific and commercial data available.'' As 
discussed below, the Service's Status Review for its proposal to list 
the northern long-eared bat as endangered is based on conflicting 
information, assumptions, unpublished data which has not been peer-
reviewed, and suffers from numerous data gaps. The proposed listing is 
not supported by the best scientific and commercial data available and 
therefore does not meet the legal standard required by Sec. 4(b)(1)(A) 
of the ESA.
    Section 4(b)(1)(A) also prohibits ESA listing determinations until 
after all of the efforts made by states or other political subdivisions 
to protect such species are considered. Several states have created 
white-nose syndrome (WNS) action plans \1\ and are in the ``front 
lines'' of bat management efforts. PIOGA and the PA Chamber believe the 
Service has not fully considered these efforts to protect and conserve 
the northern long-eared bat. The Service recognizes that its Status 
Review only ``provides a few examples of such existing regulatory 
mechanisms, but is not a comprehensive list.'' See 78 Fed. Reg. at 
61067-68. Worse, the Service actually misunderstands or misrepresents a 
bill pending in the Pennsylvania legislature, House Bill 1576 (the 
Endangered Species Coordination Act), which does specifically allow 
Pennsylvania administrative agencies to designate threatened and 
endangered species under Pennsylvania state law. Id. at 61068.
---------------------------------------------------------------------------
    \1\ See White-nose Syndrome.org, www.whitenosesyndrom.org/white-
nose-syndrom-planning, which provides links to action plans from ten 
states.
---------------------------------------------------------------------------
    The Service must consider all current state and local efforts to 
protect the northern long-eared bat in order to comply with 
Sec. 4(b)(1)(A). PIOGA and the PA Chamber recommend that the Service 
postpone making a final decision on the species listing so that it can 
fully review conservation and research programs underway in various 
states.

            2. Peer review of significant amounts of unpublished data 
                    is missing; the
              listing is not supported by the best scientific and 
                    commercial data available.

    The Service is ``seeking comments from knowledgeable individuals 
with scientific expertise to review our analysis of the best available 
science.'' 78 Fed. Reg. at 61046. The Status Review lists over 20 
unpublished studies and sources of data, including data reportedly 
supplied by the Pennsylvania Game Commission and other state agencies. 
Some studies anecdotally note northern long-eared bat population 
declines in Pennsylvania but only from winter cave surveys rather than 
multiple seasonal surveys. Some or all of these studies and data 
clearly warrant peer review because the Service obviously is relying on 
them for its proposed listing. It is not clear whether the scientific 
community has had a meaningful opportunity to review these sources, 
whether the sources have been peer-reviewed, or if so, which sources 
have been reviewed. PIOGA and the PA Chamber do not believe the 
Pennsylvania Game Commission data, for example, has been made available 
to the public and regulated community. We have not seen it.
    Observations of multiple independent bat biologists that are 
summarized in the Marcellus Shale Coalition's and the Ohio Oil and Gas 
Association's comments on the Status Review indicate that the northern 
long-eared bat is the most common bat captured in surveys. Peer review 
would determine whether all appropriate factors to evaluate a listing, 
such as spring emergence counts, summer mist netting, fall swarming 
surveys, and winter hibernacula surveys, have been considered. The 
Service cannot meet its legal obligation to use the best scientific and 
commercial data available without subjecting its data to peer review.

            3. The development of recovery plans that impose 
                    significant restrictions
              on industry and the designation of critical habitat are 
                    not warranted.

    The Service makes two key findings regarding WNS and critical 
habitat. First, the northern long-eared bat ``is in danger of 
extinction, predominantly due to the threat of white nose syndrome'' 
(emphasis added). 78 Fed. Reg. 61046. Second, there is no designation 
of critical habitat,\2\ although comments are invited on such a 
designation. The Status Review notes that ``since information regarding 
the biological needs of the [long-eared bat] is not sufficiently well 
known to permit identification of areas as critical habitat, we 
conclude that the designation of critical habitat is not determinable 
for the northern long-eared bat at this time.'' 78 Fed. Reg. at 61079.
---------------------------------------------------------------------------
    \2\ ``Critical habitat'' is the habitat that is essential to the 
conservation of the species under Section 3 of the ESA. 16 U.S.C. 
Sec. 1532(5).
---------------------------------------------------------------------------
    Those two findings compel the following conclusion: where disease 
rather than habitat loss is causing the species decline, additional 
restrictions on field activities such as tree clearing, well pad 
development, and similar activities will not significantly help 
preserve the northern long-eared bat or combat the spread of WNS. 
Nothing in the Status Review indicates that the proposed listing, the 
development of a recovery plan, and restricting potential habitat 
modification, including oil and gas development, will appreciably stop 
or reverse the northern long-eared bat's decline. As the Service 
acknowledges, ``[e]ven if all habitat-related stressors were eliminated 
or minimized, the significant effects of WNS on the northern long-eared 
bat would still be present.'' 78 Fed. Reg. at 61061. The key factor at 
issue is disease, not oil and gas operations or other activities. A 
listing that leads to a recovery plan which concentrates on the 
designation and protection of critical habitat as it relates to oil and 
gas development and other activities is contrary to the express purpose 
of Section 2(b) of the ESA, which is to conserve species. 16 U.S.C. 
Sec. 1531(b).
    As the Service evaluates a listing decision based on the existing 
record, the Service must fully consider the fact that not enough 
information is known to designate critical habitat, and that WNS rather 
than the loss of critical habitat is the predominate reason for the 
bat's decline.

            4. The Service must better understand the temporary nature 
                    of disturbance
              from the oil and gas development before finalizing the 
                    proposed listing.

    The conventional and unconventional (i.e., shale gas development) 
oil and gas industry develops natural resources responsibly by, for 
example, using existing access roads where feasible, limiting earth 
disturbance, minimizing the size of well pads, and reclaiming sites to 
pre- existing conditions after wells are drilled and completed. Oil and 
gas development operations typically are not of the nature, scope or 
duration that would compromise the lifecycle, reproduction, and habitat 
of the northern long-eared bat.
    Several of the statements in the Status Review's discussion of 
shale gas development are simply not accurate. 78 Fed. Reg. at 61061. 
First, the statements regarding the number of wells projected and the 
size of potential disturbance do not take into account the evolution 
and shift of technology of horizontal drilling and minimizing 
disturbance by drilling multiple wells on one well pad. Second, the 
surface disturbance created by the development of shale gas is 
temporary and many states including Pennsylvania require site 
restoration and reclamation as part of the permit and construction 
process. And third, there is no recognition of the very minor footprint 
(frequently half an acre or less) occupied by a conventional well after 
it is drilled and completed. PIOGA and the PA Chamber recommend that 
the Service more carefully consider these facts as it evaluates the 
proposed listing.

            5. The relationship between White-Nose Syndrome and 
                    northern
              long-eared bat population must be better researched and 
                    understood.

    The effect of WNS varies widely by bat species. The Service 
recognizes that the use of predicted trends in other species may or may 
not be indicative of population trends in other bat species including 
the northern long-eared bat. 78 Fed. Reg. 61061. The Service also 
acknowledges that the northern long-eared bat is easily overlooked 
during hibernacula surveys and the species is reported to be present in 
any one site smaller numbers than other species of bats. But the 
Service provides nothing to support the statement that ``other factors 
are acting in combination with WNS to reduce the overall viability of 
the species.'' 78 Fed. Reg. 61076. As such, the determination to list 
the northern long-eared bat could only be based on strong data and 
evidence about the impact of WNS on the bats, which PIOGA and the PA 
Chamber believe is lacking.
    Additional studies should be completed to understand the connection 
and impact of WNS on the northern long-eared bat.

            6. PIOGA and the PA Chamber support deferring
              the listing on the eastern small-footed bat.

    PIOGA and the PA Chamber agree with the Service's determination 
that an endangered listing of the eastern small-footed bat is not 
warranted at this time in view of the information, survey data and what 
is currently known about this bat species.
Conclusion
    We believe that there is not a legally or technically adequate 
basis to list the northern long-eared bat as endangered or threatened 
at this time. The listing proposal should be withdrawn or delayed until 
all current efforts to protect the species have been fully considered, 
and all of the assumptions, modeling, and uncertainties have been 
subject to peer review. PIOGA and the PA Chamber join the Marcellus 
Shale Coalition's request that the Service obtain a six-month extension 
to the deadline for making a final decision on the species listing. 
This would benefit all stakeholders and the Service because it would 
allow (i) stakeholders and the scientific community at large time to 
peer review data cited in the Status Review, (ii) the Service time to 
review the comments received with respect to the proposed listing, and 
(iii) the Service time to consider and compile additional data and 
information which may have been absent from the current analysis.
    If the Service decides to list the northern long-eared bat, PIOGA 
and the PA Chamber strongly encourage the Service to provide maximum 
flexibility in any rule or protective measures that are developed. As 
noted above, designation of critical habitat is not appropriate to 
conserve the species because no specific area in this bat's range is 
likely to be essential to its conservation. The costs imposed on 
development activities throughout multiple industries and on the oil 
and gas industry specifically by any listing could be significant 
without a clear benefit to the species. However, if the Service moves 
forward to designate critical habitat and a recovery plan, PIOGA and 
the PA Chamber request to be included as stakeholders in that process.
    On behalf of our members, we appreciate your consideration of our 
comments. Please contact us if you have any questions or if you want to 
discuss these comments.

            Sincerely,

                                               Lou D'Amico,

                                     President & Executive Director
                                                              PIOGA

                                               Sam Denisco,

                                 Vice President, Government Affairs
                                PA Chamber of Business and Industry

cc:

The Honorable Dan Ashe, Director, U.S. Fish & Wildlife Service

Jill Utrup--U.S. Fish & Wildlife Service, Twin Cities Field Office

William Capouillez, Director, Habitat Management, Pennsylvania Game 
Commission

                              ATTACHMENT 2

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


                                               February 5, 2014

BY CERTIFIED MAIL

The Honorable Sally Jewell, Secretary of the Interior
U.S. Department of the Interior
1849 C Street, N.W.
Washington, D.C. 20240

The Honorable Dan Ashe, Director
U.S. Fish & Wildlife Service
1849 C Street, N.W., Room 3331
Washington, D.C. 20240

Re: Emergency Petition for Programmatic ``No Jeopardy'' Finding for the 
        Northern Long-Eared Bat

    Dear Secretary Jewell and Director Ashe:

    Pursuant to the Right to Petition Government Clause of the First 
Amendment to the United States Constitution,\1\ the Ohio Oil and Gas 
Association, the Marcellus Shale Coalition, the Gas Processors 
Association, the Independent Oil & Gas Association of New York, the 
Oklahoma Independent Petroleum Association, the Pennsylvania Chamber of 
Business and Industry, the Pennsylvania Independent Oil & Gas 
Association, the U.S. Chamber of Commerce, and the West Virginia Oil 
and Natural Gas Association (collectively ``Petitioners'') hereby 
submit this petition, on an emergency basis, to the U.S. Department of 
the Interior and the U.S. Fish & Wildlife Service (``FWS'' or ``the 
Service''). Specifically, Petitioners ask the Service to issue a 
finding pursuant to Section 7(a)(4) of the Endangered Species Act 
(``ESA ''), 16 U.S.C. Sec. 1536(a)(4), that oil and gas exploration and 
development activities undertaken before FWS issues a final listing 
decision for the Northern long-eared bat (``NLEB''), expected later 
this year, are not likely to jeopardize the continued existence of the 
species.
---------------------------------------------------------------------------
    \1\ ``Congress shall make no law . . . abridging . . . the right of 
the people . . . to petition Government for a redress of grievances.'' 
U.S. Const., amend. I. The right to petition for redress of grievances 
is among the most precious of the liberties safeguarded by the Bill of 
Rights. United Mine Workers of America, Dist. 12 v. Illinois State Bar 
Ass'n, 389 U.S. 217, 222 (1967). It shares the ``preferred place'' 
accorded in our system of government to the First Amendment freedoms, 
and has ``a sanctity and a sanction not permitting dubious 
intrusions.'' Thomas v. Collins, 323 U.S. 516, 530 (1945). ``Any 
attempt to restrict those First Amendment liberties must be justified 
by clear public interest, threatened not doubtful or remotely, but by 
clear and present danger.'' Id.
---------------------------------------------------------------------------
    As explained more fully below, after proposing to list the NLEB as 
endangered in October, the Service began instructing its Field Offices 
and federal action agencies to perform costly and time-consuming ESA 
Section 7(a)(4) conferencing reviews for all activities proposed to 
take place within the species' range to determine whether each activity 
likely will jeopardize the continued existence of the NLEB, and to 
initiate a conference even if the proposed activity likely will not 
jeopardize the species. These instructions and the reviews they 
generate are unwarranted and unsupported by law. Because oil and gas 
exploration and development activities are localized and do not have 
population-level effects on the NLEB, there is no scenario in which 
those activities likely will jeopardize the continued existence of the 
species during the pendency of FWS's listing decision. As a result, 
there is no scenario in which such a proposed activity should trigger 
the ESA's Section 7(a)(4) conferencing requirement.
    To ensure that the FWS Field Offices and the various federal action 
agencies comply with the narrow requirements of the ESA for proposed 
species and, in the process, avoid wasting millions of federal and 
private dollars and needlessly delaying billions of dollars in energy 
development projects nationwide, Petitioners respectfully request that 
the Service issue a programmatic ``no jeopardy'' finding for proposed 
oil and gas exploration and development activities scheduled to occur 
within the NLEB's range before FWS issues a final listing decision for 
the species.
                      I. Interests of Petitioners
    The importance of the oil and natural gas industry to the national 
economy cannot be overstated. Oil and gas supply more than 60% of the 
,nation's energy, and they are crucial components in a wide variety of 
products--from synthetic fabrics, to medicines, to fertilizers. As a 
result, the oil and natural gas industry has a deep impact throughout 
all sectors of the economy and across all 50 states. In 2011 alone, the 
industry's total impact on U.S. gross domestic product was $1.2 
trillion, accounting for 8.0% of the national total. The industry's 
total employment impact to the national economy in 2011 amounted to 9.8 
million full-time and part-time jobs and accounted for 5.6% of total 
U.S. employment. That employment generated $598 billion in labor 
income, or 6.3% of national labor income in 2011. See generally, 
American Petroleum Institute, Economic Impacts of the Oil and Natural 
Gas Industry on the U.S. Economy in 2011 (July 2013), available at 
http://www.api.org/policy-and-issues/policy-items/jobs/economic-
impacts-of-oil-natural-gas-industry-on-us-economy-2011. Petitioners 
represent thousands of members in this industry. many of whom regularly 
operate within the range of the NLEB and are significantly affected by 
the activities of FWS described in this petition.
    The Ohio Oil and Gas Association (``OOGA'') is one of the largest 
and most active state-based oil and natural gas associations in the 
country and has served as the representative of Ohio's oil and gas 
industry since 1947. Its 3,300+ members include large and small 
business entities involved in all aspects of the exploration, 
development, production, and marketing of crude oil and natural gas 
resources in Ohio. Because of the small size of many OOGA members, they 
often rely on OOGA as their primary source of information on industry 
trends, activities, tax changes, legislation, and regulatory matters. 
OOGA also serves to protect its members' interests by participating in 
federal and state regulatory actions involving the crude oil and 
natural gas industry.
    The Marcellus Shale Coalition (``MSC'') is a trade association with 
national membership. The MSC was formed in 2008 and currently is 
comprised of approximately 300 producing and supply chain members who 
are fully committed to working with local, county, state and federal 
government officials and regulators to facilitate the development of 
the natural gas resources in the Marcellus, Utica and related 
geological formations. The MSC's members represent many of the largest 
and most active companies in natural gas production, gathering and 
transmission in the country, as well as the suppliers and contractors 
who service the industry.
    The Gas Processors Association (``GPA'') is a trade organization 
that has served member companies since 1921. GPA is made up of 130 
corporate members, all of whom are engaged in the processing of natural 
gas into merchantable pipeline gas, or in the manufacture, 
transportation, or further processing of liquid products from natural 
gas. GPA's corporate members represent approximately 92% of all natural 
gas liquids produced in the United States and operate approximately 
190,000 miles of domestic gas gathering lines.
    The Independent Oil & Gas Association of New York (``IOGANY'') is 
an industry trade association founded in 1980 and is currently 
comprised of more than 330 members, including but not limited to, oil 
and gas producers and operators, pipeline and marketing companies, 
engineers and geologists, and oil and natural gas utilities. Many 
IOGANY members operate in areas within the range of the NLEB. These 
operations are crucial to its members' business and their continued 
ability to develop and produce our nation's energy. They also provide 
substantial income within these localities, along with secure, well-
paying jobs at a time when significant unemployment continues to 
trouble our nation.
    The Oklahoma Independent Petroleum Association (``OIPA'') 
represents approximately 2,650 small to large independent operators 
that are primarily involved with the exploration and production of 
crude oil and natural gas in Oklahoma. In addition, OIPA represents a 
number of companies which provide services that support exploration and 
production activities. ``Independent'' producers are non-integrated 
companies which receive the majority of their revenues from production 
at the wellhead. They are exclusively in the exploration and production 
segment of the industry with no marketing or refining operations as 
compared to the large, integrated, major oil and gas companies. 
Independent oil and gas companies range in size from large companies 
with thousands of employees to hundreds of smaller ``mom and pop'' type 
companies. In Oklahoma, independent producers make up the majority of 
the energy industry producing 96% of the state's crude oil and 88% of 
the state's natural gas.
    The Pennsylvania Chamber of Business and Industry (``PA Chamber'') 
is the largest broad-based business advocacy association in 
Pennsylvania. Its thousands of members throughout the Commonwealth of 
Pennsylvania employ greater than 50 percent of Pennsylvania's private 
workforce. Its membership ranges from Fortune 100 companies to sole 
proprietorships. Headquartered in Harrisburg, the PA Chamber serves as 
the frontline advocate for business on Capitol Hill by influencing the 
legislative, regulatory and judicial branches of state government. Its 
mission is to improve Pennsylvania's business climate for PA Chamber 
members.
    The Pennsylvania Independent Oil & Gas Association (``PIOGA'') is a 
trade association comprising nearly 1,000 members: Pennsylvania 
independent oil and natural gas producers, marketers, service companies 
and related businesses, landowners and royalty owners. PIOGA's members 
undertake oil and gas development and production operations within the 
potential range of the NLEB in Pennsylvania. These operations, 
including clearing trees and building roads, are constrained and 
directed by environmental laws regarding permits and species 
protection, as well as by property and contract law.
    The U.S. Chamber of Commerce (``Chamber'') is the world's largest 
business federation, representing the interests of more than three 
million businesses of all sizes, sectors, and regions, as well as state 
and local chambers and industry associations, and dedicated to 
promoting, protecting, and defending America's free enterprise system.
    The West Virginia Oil and Natural Gas Association (``WVONGA''), 
chartered in 1915, is the only association that serves the entire oil 
and gas industry within West Virginia. WVONGA members operate in 
virtually every county in West Virginia. Its members employ thousands 
of people across the state, having payrolls totaling hundreds of 
millions of dollars annually. WVONGA members have a cumulative 
investment of nearly $10 billion in West Virginia, own about 20,000 oil 
and gas wells, have more than 15,000 miles of pipeline crisscrossing 
the state and provide oil and natural gas to roughly 300,000 West 
Virginia homes and businesses. Because of the small size of many WVONGA 
members, they often rely on WVONGA as their primary source of 
information on industry trends, activities, tax changes, legislation, 
and regulatory matters. WVONGA also serves to protect its members' 
interests by participating in federal and state regulatory actions 
involving the crude oil and natural gas industry.
                             II. Background
    On October 2, 2013, the Service issued a 12-Month Finding on 
Petition To List the Northern Long-Eared Bat and the Eastern Small-
Footed Bat as Endangered or Threatened Species and Proposed Rule. 78 
Fed. Reg. 61046 (Oct. 2, 2013) (Attachment 1 hereto). The Northern 
long-eared bat has a broad range, covering 39 states (including the 
District of Columbia) and much of Canada, and the species continues to 
be commonly captured throughout the bulk of that range. Id. at 61051-
64. Nevertheless, FWS has proposed to list the species as endangered 
because of reported and anticipated impacts from white nose syndrome 
(``WNS'')--a fungal disease discovered in New York in 2006 with 
currently no known cure.
    In support of its proposed listing decision for the NLEB, the 
Service explains that ``WNS currently is the predominant threat to the 
species, and if WNS had not emerged or was not affecting the northern 
long-eared bat populations to the level that it has, we presume the 
species would not be experiencing the dramatic declines that it has 
since WNS emerged.'' Id. at 61058. Although WNS has been confirmed only 
in a portion of the NLEB's range, FWS believes that in time the disease 
will spread to other areas of the species' range. Accordingly, the 
Service's proposed listing decision is premised solely upon the 
reported and anticipated effects of WNS on the NLEB. See id. at 61072. 
Indeed, the Service states that while ``[o]ther sources of mortality to 
the species include wind-energy development, habitat modification, 
destruction and disturbance (e.g., vandalism to hibernacula, roost tree 
removal), effects of climate change, and contaminants . . ., no 
significant decline due to these factors has been observed . . ..'' Id. 
at 61075.
    The Service did not designate any critical habitat for the NLEB in 
its proposed listing decision because it determined that doing so was 
not ``prudent and determinable.'' Id. at 61077-79. FWS expects to issue 
a final listing decision for the species by October 2, 2014.\2\ See 
generally id. Until that time, the NLEB is considered a ``proposed 
species'' under the ESA. 50 C.F.R. Sec. 402.02.
---------------------------------------------------------------------------
    \2\ It should be noted, however, that numerous commenters on the 
proposed listing decision have urged FWS to obtain a six-month 
extension of the deadline for making a final decision pursuant to the 
terms of the multi-district litigation settlement agreements. In Re: 
Endangered Species Act Section 4 Deadline Litigation, MDL No. 2165, 
Case No. 10-377 (D.D.C).
---------------------------------------------------------------------------
       III. ESA Section 7(a)(4) Conferencing Requirement and FWS 
                        Conferences on the NLEB
    Unlike species that the Service has listed as threatened or 
endangered, proposed species, such as the NLEB, are not subject to the 
ESA's traditional species protections. See 16 U.S.C. 
Sec. Sec. 1536(a)(2), 1538(a)(1). The ESA's protections for proposed 
species are limited in pertinent part to the Section 7(a)(4) 
conferencing requirement. Id. Sec. 1536(a)(4).
    Section 7(a)(4) of the ESA directs that ``[e]ach Federal agency 
shall confer with the Secretary on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under [the ESA] or result in the destruction or adverse modification of 
critical habitat proposed to be designated for such species.'' Id. 
Thus, in contrast to Section 7 consultations, which federal agencies 
must initiate with FWS anytime a planned action ``may affect'' a listed 
species, federal agencies must initiate Section 7(a)(4) conferences 
only if they determine that the action ``likely'' will ``jeopardize the 
continued existence of'' a proposed species.\3\ See id.; FWS, 
Endangered Species Consultation Handbook at 6-1 (1998). That is a 
rigorous standard to meet.
---------------------------------------------------------------------------
    \3\ The Section 7(a)(4) conferencing requirement also is triggered 
when an activity likely will destroy or adversely modify proposed 
critical habitat. 33 U.S.C. Sec. 1536(a)(4). Because FWS has not 
proposed to designate critical habitat for the NLEB, that requirement 
is not applicable here. In addition, although not contemplated in the 
ESA or its implementing regulations, the Service has unofficially 
interpreted Section 7(a)(4) to allow action agencies voluntarily to 
request a conference with FWS without first determining that a proposed 
action likely will jeopardize a proposed species or destroy/adversely 
modify critical habitat. Endangered Species Consultation Handbook at 6-
1. We question the validity of that interpretation, but it currently is 
beyond the scope of this petition.
---------------------------------------------------------------------------
    The Service defines ``jeopardize the continued existence of'' to 
mean ``to engage in an action that reasonably would be expected, 
directly or indirectly, to reduce appreciably the likelihood of both 
the survival and recovery of a listed species in the wild by reducing 
the reproduction, numbers, or distribution of that species.'' 50 C.F.R. 
Sec. 402.02. Making the standard even more demanding, jeopardy 
determinations must be based on the effects of the proposed action to 
the entire population of a species range-wide. Endangered Species 
Consultation Handbook at 4-36. As FWS has explained, ``[a]dverse 
effects on individuals of a species . . . generally do not result in 
jeopardy determinations unless that loss, when added to the 
environmental baseline, is likely to result in significant adverse 
effects throughout the species' range.'' Id.
    On January 6, 2014, the Service issued interim guidance to help FWS 
Regions 2, 3, 4, 5, and 6 conduct Section 7(a)(4) conferences on the 
NLEB in advance of a final listing decision. FWS, Northern Long-Eared 
Bat Interim Conference and Planning Guidance (Jan. 6, 2014) (``NLEB 
guidance'') (Attachment 2 hereto). Notwithstanding the narrow 
requirement of Section 7(a)(4) for action agencies to confer with FWS 
only when they determine that a proposed activity likely will 
jeopardize a species, the Service's guidance espouses a far broader 
interpretation. The guidance asserts that ``it is in the best interest 
of the species, and our federal partners to consider the value of 
voluntary conservation measures [in the conferencing process] for 
projects that are not likely to cause jeopardy, but are likely to 
adversely affect the NLEB.'' Id. at 6. In fact, the guidance 
acknowledges that its outlined procedures ``include some section 7 
language and steps that are not required,'' but states that ``FWS 
offices and action agencies are encouraged to employ these procedures'' 
nonetheless. Id. at 9. In other words, FWS is advising its Field 
Offices and the federal action agencies to take actions that are beyond 
the authority provided in the ESA and the conferencing requirement of 
Section 7(a)(4).\4\
---------------------------------------------------------------------------
    \4\ Although not the subject of this petition, Petitioners question 
whether the guidance is valid or authorized by the ESA. By filing this 
petition, Petitioners do not waive any right to challenge the guidance 
or FWS's or any other agency's reliance on it.
---------------------------------------------------------------------------
    Unfortunately, the Field Offices and action agencies already have 
begun implementing these overreaching procedures--in some cases, even 
before the guidance was finalized. For example, the FWS Ecological 
Services Office in Columbus, Ohio employed these procedures as early as 
November 2013 to instruct project proponents and federal action 
agencies not to clear trees in areas where NLEBs have been captured in 
surveys ``until after any necessary consultation between the Federal 
agency and the Service, under section 7 of the Endangered Species Act 
of 1973, as amended, is complete.'' See Letters from Mary Knapp--FWS 
Field Supervisor for Columbus Ecological Services Office (Attachment 3 
hereto).\5\ It further ``request[s] that unavoidable tree clearing be 
conducted from October 1 to March 31 whenever possible.'' Id. These 
instructions by FWS are not authorized by the ESA or justified under 
the statute's Section 7(a)(4) conferencing provision.
---------------------------------------------------------------------------
    \5\ These letters appear to go even further than the NLEB guidance 
by instructing the project proponent to undertake Section 7 
consultation--a process that the ESA reserves only for species that 
already have been listed under the ESA. See 16 U.S.C. Sec. 1536(a)(2).
---------------------------------------------------------------------------
    The ultra vires conferencing process that the NLEB guidance 
recommends already has had and will continue to have a significant 
impact on the government and on industry. Conferencing reviews take 
time. They require coordination between at least two federal agencies, 
evaluation of environmental studies and data, and legal and scientific 
analyses. Conducting those activities requires FWS and the action 
agencies to expend significant money and resources from their already-
strained budgets.\6\ Meanwhile, and contrary to the express terms of 
Section 7(a)(4), the subject activity under review cannot move forward 
because action agencies typically will not issue the permits and other 
federal authorizations required to begin work on projects until the 
conferencing review has been completed. See 16 U.S.C. Sec. 1536(a)(4) 
(clarifying that the ESA does not prohibit permit applicants from 
moving forward with their activities before the conferencing process is 
completed). As a result, project proponents already have and will 
continue to suffer substantial and costly delays and incur significant 
opportunity costs on account of these unwarranted reviews.\7\
---------------------------------------------------------------------------
    \6\ See U.S. Fish & Wildlife Service Budget Justifications and 
Performance Information--Fiscal Year 2014 at ES-11 (explaining that 
$64.75 million has been budgeted in FY 2014 for FWS to carry out its 
responsibilities under Section 7 and the habitat conservation planning 
provisions of the ESA).
    \7\ In 2012, oil and gas producers spent an estimated $153.7 
billion to drill 46,736 wells in the United States. API Survey: U.S. 
Energy Revolution Gathers Momentum (Dec. 23, 2013), available at http:/
/www.api.org/news-and-media/news/newsitems/2013/dec-2013/api-survey-us-
energy-revolution-gathers-momentum. Billions more are spent each year 
on pipelines and related infrastructure.
---------------------------------------------------------------------------
                 IV. Requested Relief and Justification
    To ensure that the Service and federal action agencies act within 
the confines of the Section 7(a)(4) conferencing requirement and avoid 
wasting significant federal and private resources and needlessly 
delaying important energy projects in 39 states, Petitioners 
respectfully request that FWS promptly issue a programmatic ``no 
jeopardy'' finding for all oil and gas exploration and development 
activities (``O&G activities'') to be undertaken within the NLEB's 
range before a final listing decision is made for the species.\8\ Such 
a finding is appropriate because the best scientific and commercial 
data available--the record underlying FWS's proposed listing decision--
demonstrates beyond dispute that (1) oil and gas exploration and 
development activities do not appreciably affect the NLEB individually 
or cumulatively (leading FWS to conclude that these activities do not 
affect the species' ``continued existence''), even when combined with 
the effects of all other land development activities throughout the 
species' range; (2) the single primary threat to the NLEB is white-nose 
syndrome--indeed, FWS would not be proposing to list the NLEB but for 
the reported and anticipated effects of WNS--yet the disease has spread 
to only a portion of the NLEB's range and significant impacts to the 
species from the disease have been reported only in a fraction of that 
area; and (3) irrespective of the impacts of WNS and any impacts from 
land development activities, the NLEB continues to be prevalent in the 
majority of its broad range. Each of these factors is discussed in 
turn.
---------------------------------------------------------------------------
    \8\ This petition requests the Section 7(a)(4) ``no jeopardy'' 
finding only until the Service issues a final listing decision for the 
NLEB because, if FWS decides to list the species, Section 7(a)(4) no 
longer would apply. Accordingly, any activities that have not been 
completed and will continue to require federal action or subsequently 
will require federal action would be subject to the ESA's Section 
7(a)(2) consultation requirement for listed species (if they likely 
will affect a listed species) once a final affirmative listing decision 
is made.
---------------------------------------------------------------------------
    First and most fundamentally, the Service already has determined 
that O&G activities do not have population-level effects on the NLEB, 
even when combined with all other non-WNS impacts. In the proposed 
listing decision, FWS considers potential direct and indirect effects 
to the NLEB from a variety of activities, including wind energy 
development, pesticide application, forest management and prescribed 
burning, activities that emit greenhouse gases, natural gas exploration 
and development, mining, and other land development activities that 
take place within the species' summer habitat. 78 Fed. Reg. at 61059-61 
, 61068-72. Based on that analysis, the Service concludes that 
``[a]lthough such activities occur, there is no evidence that these 
activities alone have significant effects on [the NLEB], because their 
effects are often localized and not widespread throughout the species' 
range[].'' Id. at 61072; see also id. at 61061 (``Although such 
activities occur, these activities alone do not have significant 
population-level effects on [the] species.'').
    Under the express terms of the ESA, that conclusion confirms that 
human activities do not affect the NLEB's ``continued existence'' and, 
therefore, that they cannot be ``likely'' to jeopardize the species' 
continued existence. See 16 U.S.C. Sec. 1533(a)(1)(E) (setting forth 
the Factor E listing criterion--the analysis FWS performed to reach the 
above-quoted conclusion--which requires FWS to determine whether the 
species should be listed on account of ``natural or manmade factors 
affecting its continued existence'') (emphasis added). If that were not 
enough, the Service then concludes that those various types of human 
activities--even when viewed ``in combination'' with each other and 
even when considering ``all present and threatened destruction, 
modification. or curtailment of [the NLEB's] habitat or range'' from 
other activities (including natural gas development) and the use of the 
species for ``commercial, recreational, scientific, or educational 
purposes''--``do not have significant effects on the species.'' Id. at 
61057, 61061, 61072.\9\
---------------------------------------------------------------------------
    \9\ While FWS also states that ``when combined with the significant 
population reductions due to white-nose syndrome (Factor C), the 
resulting cumulative effect may further adversely impact the species,'' 
that tentative conclusion does not suggest that these activities, alone 
or in combination with each other and WNS, could affect the NLEB to 
such an extent as to likely jeopardize its continued existence. See id. 
at 61072 (emphasis added). Nor could it given that WNS has not been 
confirmed in nearly half of the NLEB's range. See infra at 7.
---------------------------------------------------------------------------
    In the face of these conclusions, which the ESA required FWS to 
make based on the best scientific and commercial data available, the 
Service cannot now reasonably find that any individual O&G activity 
that is undertaken before a final listing decision is made likely will 
jeopardize the NLEB.\10\ That is particularly true in light of the 
Service's understanding that jeopardy findings should be based on 
range-wide, population-level species impacts from proposed actions, not 
localized and individual effects to species. See Endangered Species 
Consultation Handbook at 4-36; supra at 6.
---------------------------------------------------------------------------
    \10\ Although not considered by FWS in its proposed listing 
decisions, the conclusion that human activities such as O&G development 
will not likely jeopardize the species is even stronger here because 
(1) the NLEB will be in hibernation (and therefore would not be 
expected to be directly affected by such activities) for a large 
portion of the time remaining in the listing decision-making process, 
and (2) the species will not suffer significant effects from such 
activities when not hibernating since NLEB summer habitat is and will 
continue to be plentiful. See 78 Fed. Reg. at 61055 (explaining that 
NLEBs can hibernate from October until April); Comments of MarkWest 
Energy Partners, L.P. at 12 (Jan. 2, 2014) (Attachment 4 hereto) 
(citing the comments of several state and peer review commenters to 
demonstrate that summer habitat is not a limiting factor for the NLEB).
---------------------------------------------------------------------------
    Second, throughout its proposed listing decision, the Service makes 
clear that impacts--both reported and predicted--to the NLEB from 
white-nose syndrome are the ``but for'' cause of its proposal to list 
the species as endangered. FWS explains that ``WNS alone has led to 
dramatic and rapid population level effects on the northern long-eared 
bat'' and ``the species likely would not be imperiled were it not for 
this disease.'' 78 Fed. Reg. at 61072 (emphasis added). At the same 
time, the Service recognizes that the distribution of WNS covers only 
portions of the NLEB's range in the U.S. and abroad. In fact, as of 
this past August, WNS has never been documented in 17 states within the 
NLEB's U.S. range. Id. at 61061. And based on FWS reports, to date the 
disease has not significantly affected the NLEB in many of those areas 
where its presence has been confirmed. See id. at 61064-65 (reporting 
that WNS is known to have significantly affected the NLEB only in the 
northeastern portion of its U.S. range). Moreover, while the Service 
hypothesizes that WNS will quickly spread to the remainder of the 
species' range and will significantly affect the NLEB range-wide in the 
future, the administrative record for the proposed listing decision 
does not support that conclusion. See Attachment 4, Comments of 
MarkWest Energy Partners, L.P. at 7-8.
    In light of the foregoing, the Service and federal action agencies 
cannot reasonably conclude that any O&G activity likely will jeopardize 
the NLEB as the ESA requires to compel a Section 7(a)(4) conference 
with FWS. That WNS--the sole cause of the reported population-level 
declines of the NLEB--has not reached nearly 50% of the species' 
domestic range and currently does not significantly affect the bat in 
many areas that it has reached ensures that even the largest O&G 
activities will not jeopardize the NLEB.
    Finally, notwithstanding the proposed listing decision, the NLEB 
continues to be prevalent throughout much of its broad 39-state range. 
As FWS recognizes, the NLEB has been particularly ``abundant'' in the 
eastern portion of its range, and it is ``commonly encountered in 
summer mist-net surveys throughout the majority of the Midwest and is 
considered fairly common throughout much of the region'' as well. 78 
Fed. Reg. at 61052. According to the Service, the NLEB remains the 
second-most captured bat species in Vermont, is ``fairly common'' in 
Virginia and Maine, is routinely caught in at least 51 counties in 
Indiana, is considered ``common'' in West Virginia, is ``commonly 
captured'' in Missouri (so much so that the state removed the bat from 
its species of concern list in 2007), is ``regularly caught'' in 
Illinois, is ``regularly collected'' in Ohio, is ``regularly captured'' 
and is ``one of the most common bat species captured during mist net 
surveys'' within its range in Oklahoma, and is ``commonly captured'' in 
Kentucky. Id. at 61052-53, 61064. And as numerous state, peer review, 
and private commenters explained in their recent comments on the 
proposed listing decision, even these reports underrepresent the 
species' abundance and population trends. See, e.g., Comments of OOGA 
(Jan. 2, 2014) and Comments of MarkWest Energy Partners, L.P. (Jan. 2, 
2014) (demonstrating that the winter survey data that FWS relied on for 
the proposed listing decision significantly underrepresents the NLEB's 
abundance and does not reflect the best available science) (Attachment 
4 hereto). In view of the NLEB's continuing abundance throughout much 
of its range (not to mention the localized nature of most O&G 
activities that FWS recognizes in the proposed listing decision, see 
supra at 8), no proposed O&G activity likely will jeopardize the NLEB 
and thus require a Section 7(a)(4) conference before a final listing 
decision is made.
    For each of the above reasons, the Service should issue the 
requested ``no jeopardy'' finding for proposed O&G activities scheduled 
to occur within the NLEB's range before a final listing decision is 
made. The administrative record for the proposed listing decision, 
which the Service endorses as the best scientific and commercial data 
available, demonstrates that there is no scenario in which such 
activities ``are likely to jeopardize the continued existence of'' the 
NLEB during that time. There simply is no reasonable basis for 
concluding that any such activity could ``be expected, directly or 
indirectly, to reduce appreciably the likelihood of both the survival 
and recovery of [the] species in the wild by reducing the reproduction, 
numbers, or distribution of that species'' as the Service's regulations 
require for a jeopardy finding. See 50 C.F.R. Sec. 402.02 (emphasis 
added). FWS already has concluded as much in its Factor E (and Factor 
A) analysis for the proposed listing decision. See supra at 8-9. It now 
should memorialize that finding for purposes of Section 7(a)(4) in a 
programmatic ``no jeopardy'' determination.
    In light of the severe financial and logistical impacts that will 
continue to accrue until the Service acts on this petition, the limited 
timeframe until FWS makes a final listing decision on the NLEB, and the 
substantial legal and factual bases supporting the requested action, 
Petitioners respectfully request that FWS consider this petition on an 
emergency basis and perform an expedited review. To that end, we ask 
that the Service issue the proposed ``no jeopardy'' finding for O&G 
activities within 30 days from the date of this letter. Given the 
emergency nature of this request, if the proposed finding has not been 
issued by the expiration of that period, we must consider the petition 
to have been denied. In addition, in the interest of expediting this 
process, we request a meeting, with Director Ashe and any staff he 
deems appropriate before the expiration of that period to discuss these 
issues.
                                 *****
    Thank you for considering this emergency petition to issue a 
programmatic ``no jeopardy'' finding for proposed oil and gas 
exploration and development activities that will occur within the 
NLEB's range before the Service makes a final listing decision for the 
species. For the reasons explained above, issuing such a finding will 
comply with Section 7(a)(4) of the ESA, is supported by the 
administrative record for FWS's proposed listing decision, and will 
avoid wasting millions of federal and private dollars to conduct 
superfluous reviews that will needlessly delay billions of dollars in 
planned projects over the next year. If you have any questions about 
this petition, please contact W. Parker Moore at (202) 789-6028, or 
counsel for OOGA, Kristin Watt at (614) 464-8398. In addition, please 
direct any correspondence regarding this petition to:

W. Parker Moore
Beveridge & Diamond, P.C.
1350 I Street, NW, Suite 700
Washington, DC 20005
(202) 789-6028
[email protected]

        Respectfully submitted,

        Jeff Applekamp                David Spigelmyer
        Vice President, Government 
        Affairs                       President
        Gas Processors Association    Marcellus Shale Coalition

        Thomas E. Stewart             Bradley R. Gill
        Executive Vice President      Executive Director
        Ohio Oil & Gas Association    Independent Oil & Gas Association 
                                      of New York

        Mike Terry                    William L. Kovacs
        President                     Senior Vice President,
        Oklahoma Independent 
        Petroleum Association           Environment, Technology & 
                                      Government Affairs
                                      U.S. Chamber of Commerce

        Sam Denisco                   Lou D'Amico
        Vice President, Government 
        Affairs                       President and Executive Director
        Pennsylvania Chamber of 
        Business and Industry         Pennsylvania Independent Oil & 
                                      Gas Association

        Nicholas ``Corky'' DeMarco
        Executive Director
        West Virginia Oil & Natural 
        Gas Association

                                 ______
                                 

    The Chairman. Thank you. And thank you very much, Mr. 
D'Amico, for your testimony.
    Now recognize Mr. Jim Brubaker from the Farm Bureau. You 
are recognized for 5 minutes.

  STATEMENT OF JIM BRUBAKER, BOARD MEMBER, PENNSYLVANIA FARM 
 BUREAU, UNION COUNTY FARMER, BUFFALO VALLEY FARMS, LEWISBURG, 
                          PENNSYLVANIA

    Mr. Brubaker. Good morning, Chairman Hastings, and 
Representative Thompson and Representative Perry. I am Jim 
Brubaker, a grain and livestock farmer in Union County, 
Pennsylvania. I am a member of the Pennsylvania Farm Bureau, 
Board of Directors, and chair our Natural and Environmental 
Resources Committee.
    Today, I am testifying on behalf of the Pennsylvania Farm 
Bureau and the American Farm Bureau Federation.
    The Farm Bureau agrees that we must conserve and recover 
wildlife facing preventable extinction, but the ESA needs to be 
modernized to help endangered species without placing undue 
burdens on landowners.
    The Northern Long-Eared Bat's range and numbers make the 
potential impact of this listing on agriculture significant, 
and we are concerned that the basis for listing is not related 
to human activity, but because of the White Nose Syndrome. In 
summer, the Northern Long-Eared Bat roosts in live trees and 
snags, and in and on buildings, barns, sheds and so forth. 
These features are commonly found on farms across Pennsylvania 
in the bats' range.
    The take prohibitions of the ESA, along with the 
designation of critical habitat could severely restrict 
activities, including natural gas and wind energy development, 
pesticide, insecticide and herbicide applications, highway 
construction and timbering harvesting. These restrictions could 
seriously hurt Ag. and, more specifically, farms. We have many 
questions about how listing this bat could affect our 
livelihoods. For example, how would an endangered listing 
impact livestock farmers seeking to develop shale gas onto 
their property? What about a dairy farmer who can't get a milk 
truck onto his farm because construction and repair of a nearby 
bridge has been stalled? How would this impact a farmer's 
ability to clear trees for firewood, or planning or implement 
forest management plans?
    Let's look at my farm. Do I have the Northern Long-Eared 
Bat? I really don't know. Like many farmers, I just know that I 
have bats but I don't know what species, and that leads to more 
questions. What if the bats that I have in my barn are the NLE 
Bat, would I be prohibited from repairing or even changing my 
barn? What if I had to take land out of production or change 
the way I farm because I was too close to a roosting site? For 
instance, the notice links pesticides to the NLE Bat. It is 
scary to think that inputs critical to farm production could be 
restricted, even though the notice indicates that exposure to 
pesticides is not an immediate or significant risk itself. 
Pesticides are already governed by Federal and state laws. 
Farmers have used well-established application practices, 
spanning decades, in which the NLE Bat populations were not 
declining.
    I hope I have raised some important concerns today about 
how listing this bat will impact farmers. We care about the 
environment and conservation, and want to be good stewards of 
the land so we can pass it on to our next generation, but we 
also need to earn a viable income through our farms and be able 
to provide a safe and affordable food and fiber supply. 
Excessive regulations will not fix anything. Practical, 
workable solutions can, and we are willing--more than willing 
to do our part to help, but let's make sure we are solving the 
problem and not making a new one.
    Listing this bat will only restrict farmers' ability to use 
their land, and isn't likely to stop the spread of White Nose 
Syndrome. We urge the Fish and Wildlife Service to not list the 
Northern Long-Eared Bat, and to ask Congress and the members of 
this committee to help prevent this listing from happening.
    Thank you again for the opportunity to testify, and I would 
be happy to respond to your questions.
    [The prepared statement of Mr. Brubaker follows:]
 Prepared Statement of Jim Brubaker on behalf of the Pennsylvania Farm 
                                 Bureau
    Good morning, Chairman Hastings, Ranking Member DeFazio, and 
members of the committee. I am Jim Brubaker, a grain and livestock 
farmer in Union County, Pennsylvania. I operate Buffalo Valley Farms 
with my two sons. We have 900 acres of corn and soybeans, 18,000 market 
hogs and one million kosher broilers. I currently serve on the Board of 
Directors for Pennsylvania Farm Bureau (PFB), and on the Board's 
Executive Committee. I also serve as the chairman of the Natural and 
Environmental Resources Committee for PFB. In addition to my Farm 
Bureau activities, I am a member of the Buffalo Township Planning 
Commission and the Union County Commissioners' Ag Advisory Committee.
    I offer these remarks on behalf of Pennsylvania Farm Bureau and our 
nearly 60,000 members, and the more than six million member families of 
the American Farm Bureau Federation. My testimony will focus on Farm 
Bureau's understanding of the proposal to list the northern long-eared 
bat as a protected species under the Endangered Species Act (ESA) and 
the potential impact on agriculture.
    Before I begin, however, I want to be clear that Farm Bureau agrees 
that Federal agencies and citizens must take responsible action when 
wildlife species are in danger of extinction to facilitate recovery of 
species populations. Farmers enjoy the benefits of having wildlife on 
their properties. I know I do. And farmers already take measures on 
their own to provide for wildlife and their habitat on farmland. But, 
at the same time, Farm Bureau believes that the ESA must be modernized, 
so that we can protect endangered species without imposing excessive 
burdens and restrictions on landowners' use of land that provide 
marginal enhancement of species recovery. Unfortunately, the ESA is 
often ineffective at protecting endangered species, unnecessarily 
hurting people's livelihoods in the process. And, in the case of the 
northern long-eared bat, listing this species has the potential to 
negatively affect farmers within the bat's range.
                potential impacts of listing the nle bat
    The decision to list the northern long-eared bat should not be 
taken lightly. With a range of 38 states and the District of Columbia, 
and the fact that this species of bat is 15-20 times more common than 
other non-listed bats in some areas, the potential scope of this 
listing and the impact on agriculture could be unprecedented. Even more 
concerning is the basis for the proposed listing is not related to 
human activity, but because of the U.S. Fish and Wildlife Service's 
anticipated impact of the white-nose syndrome. Page 61058 of the 
October 2, 2013 Federal Register Notice \1\ (``Notice'') states:
---------------------------------------------------------------------------
    \1\ Federal Register. Volume 78, Number 191. October 2, 2013. 
Docket No. FWS-R5-ES-2011-0024; 4500030113: Endangered and Threatened 
Wildlife and Plants; 12-Month Finding on a Petition To List the Eastern 
Small-Footed Bat and the Northern Long-Eared Bat as Endangered or 
Threatened Species; Listing the Northern Long-Eared Bat as an 
Endangered Species.

        ``. . . we have found no other threat that is as severe and 
        immediate to the northern long-eared bat's persistence as the 
        disease, white-nose syndrome (WNS) . . . if WNS had not emerged 
        or was not affecting the northern long-eared bat populations to 
        the level that it has, we presume the species would not be 
---------------------------------------------------------------------------
        experiencing the dramatic declines it has since WNS emerged.''

    In addition, the Notice's \2\ summary of ``other natural or manmade 
factors affecting [the northern long-eared bat's] continued existence'' 
indicates that though the factors identified (which included wind 
energy and natural gas development, contaminants, etc) do occur, there 
is:
---------------------------------------------------------------------------
    \2\ Page 61072.

        ``. . . no evidence that these activities alone have 
        significant effects on either species [eastern and northern 
        long-eared bat], because their effects are often localized and 
---------------------------------------------------------------------------
        not widespread throughout the species' ranges.''

    Furthermore, concerns have been voiced by commenters in response to 
the FWS's request for comments about the validity of survey data 
conducted for the proposed listing was based on inaccurate and 
insufficient NLE bat data collected during winter surveys. In fact, in 
the Notice,\3\ the FWS discusses the winter habitat and specifically 
states that, ``Northern long-eared bats are typically found roosting in 
small crevices or cracks in cave or mine walls or ceilings, often with 
only the nose and ears visible, thus are easily overlooked during 
surveys.''
---------------------------------------------------------------------------
    \3\ Page 61054.
---------------------------------------------------------------------------
    The summer roosting locations are more likely to impact 
agriculture. Per the Notice, in the summer, the NLE bats, ``typically 
roost . . . underneath bark or in cavities or crevices of both live 
trees and snags,'' and ``they have also been observed roosting in 
colonies in human made structures, such as buildings, barns, a park 
pavilion, sheds, cabins, under eaves of buildings, behind window 
shutters and in bat houses.'' \4\ Many of these roosting sites are 
likely to be found on farms across Pennsylvania and within the stated 
range of these bats.
---------------------------------------------------------------------------
    \4\ Page 61045-5.
---------------------------------------------------------------------------
    Once listed, the ESA makes it unlawful for any person--including 
private and public entities--to ``take'' a NLE bat. The ESA defines 
``take'' to mean ``harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or attempt to engage in any such conduct.'' 
Further, the Act prohibits potential ``harm'' to include significant 
habitat modification or degradation which ``actually kills or injures 
fish or wildlife by significantly impairing essential behavioral 
patterns, including, breeding, spawning, rearing, migrating, feeding or 
sheltering.'' Violation of ESA take prohibitions carries civil 
penalties of up to $25,000 per violation, and criminal penalties of up 
to $50,000 and 1 year imprisonment per violation.
    These take prohibitions, along with the designation of critical 
habitat, have the potential to adversely impact a broad range of 
industries/activities including natural gas and wind energy 
development; application of pesticides, insecticides and herbicides; 
highway construction; and timber harvesting. And, if there's one thing 
in common with this list, it's that they all impact agriculture. How 
would such a listing impact a livestock farmer with vast shale gas 
resources under her land, when the sale of subsurface rights would 
provide a much-needed infusion of capital? And what of a dairy farmer 
who can't easily get a milk truck onto the farm because construction of 
a nearby bridge has stalled?
    For the purposes of this testimony, I'll discuss the issue of 
pesticides and forest land in a little more detail.
Pesticides
    In asserting the possible cumulative effects to the NLE from other 
natural or manmade factors--specifically the application of 
pesticides--FWS's proposed listing seeks to tie the chemical 
application of agricultural use of organiochlorine pesticides,\5\ 
organophosphate, carbamate and neonicotinoid insecticides, 
polychlorinated biphenols and polybrominated diphenyl ethers, and 
pyrethroid insecticides to species decline. However, at the end of the 
section of the Federal Register notice \6\ discussing the effects of 
these and other contaminants, the FWS concludes:
---------------------------------------------------------------------------
    \5\ The Federal Register (page 61070) notice acknowledges that 
``most organochlorine pesticides have been banned in the United States 
. . ..''
    \6\ Page 61071.

        ``. . . the best available data indicate that contaminant 
        exposure can pose an adverse effect to individual northern 
        long-eared and eastern small-footed bats, although it is not an 
        immediate and significant risk in itself at a population 
---------------------------------------------------------------------------
        level.''

    Pesticide applications are covered by state laws and the Federal 
Insecticide, Fungicide and Rodenticide Act, and farmers have well-
established practices concerning the application of pesticides. These 
practices spanned decades in which the NLE bat populations were not in 
decline. It was only after WNS was introduced to the NLE bat, that we 
began to see documented impacts to species health and population 
decline. In light of this, it is inappropriate for the FWS to link the 
application of pesticides by farmers to species decline without 
documented scientific analysis.
    As a farmer, linking between pesticides and the NLE bat is very 
concerning. It's scary to think that my access to an important on-farm 
tool could be restricted. I--like many of my fellow farmers in PA--am a 
certified pesticide applicator. On our farm, we don't use more 
pesticides, herbicides and insecticides than we have to and choose our 
treatments/preventive measures carefully. For example, on my farm we 
choose our herbicides based on weed pressure and field history. As I 
mention later, we also use cover crops which helps reduce weed pressure 
and the amount of herbicides we have to apply.
Forest Land
    With 59 percent or nearly 17 million acres of Pennsylvania covered 
by forest, many agricultural operations include forested acres. Given 
the statement on page 61075 of the Notice that, ``Other sources of 
mortality to the species include . . . habitat modification, 
destruction and disturbance,'' and the summer habitats of the NLE bat 
discussed earlier, listing the NLE bat as an endangered species is 
likely to pose very serious challenges to farmers who have forested 
land on their farms.
    While I personally do not have much forested land on my property, 
many farmers do. What happens if the NLE bat is found to be roosting in 
an area of a farmer's property? How will that impact the farmer's 
ability to clear trees for firewood or planting, implement forest 
management plans and undertake managed harvesting and other recommended 
activities? Restricting these activities has the potential to adversely 
affect on-farm production activities, forest habitat management, and 
farm revenue.
    On the timbering side, I know you'll be receiving testimony from 
the PA Forest Products Association, however, I do want to mention that 
Pennsylvania has one of the Nation's largest concentrations of hardwood 
growing stock and is a leading producer of hardwood lumber. This 
industry sustains jobs and contributes to both the state and national 
economies. In addition, Pennsylvania is a national leader in the 
implementation and promotion of sustainable forestry practices.
    Based on potential impacts on pesticide use and forest management 
alone, agriculture has much to be concerned about if the NLE bat is 
listed as an endangered species. But let's explore this issue even 
further.
                            farmer concerns
    Looking at a Fish and Wildlife Service map,\7\ there are confirmed 
or suspected cases of White Nose Syndrome in many of the counties 
surrounding Union County, where I live. This leads me to suspect that 
if the NLE bat was listed, I--or my neighbors--could face immediate 
restrictions on our farms and properties.
---------------------------------------------------------------------------
    \7\ http://www.fws.gov/midwest/endangered/images/mammals/nlba/
nlebRangeAndWNSmapV4 High.jpg.
---------------------------------------------------------------------------
    You may be wondering if I have the NLE bat on my property. My 
answer is I don't know. And I'd bet that a majority of my fellow 
farmers--in Pennsylvania or elsewhere--would answer the same way. I do 
have bats on my farm. I see them in buildings and in houses on my farm. 
In fact, there is one particular farmstead where I have a larger 
concentration of bats. But I don't know the species.
    What if the bats in my own barn were found to be the northern long-
eared bat? Would I face restrictions on how I could use my barn? Would 
I be able to repair or tear down an existing structure if it were found 
to house NLE bats? And, what if I had to take land out of production or 
change the way I farmed the land because it was too close to a roosting 
site?
    Consider this: if I had to take 4 acres of a corn field out of 
production, that would amount to approximately 800 bushels of corn. At 
$4.30 a bushel, that's a $3,440 in income. Or, what if I wasn't able to 
spray the correct pesticide and, as a result, I lost 40 percent loss of 
my 4-acre crop? That's a loss of $1,376. On a farm, every bit of land 
counts, and losing even just a small parcel of land can have serious 
consequences on our bottom line and the success of our farm.
                              farmers care
    I do know this: farmers care about the environment and 
conservation. We want to preserve our land and the environment. We want 
to pass our land onto the next generation without ruining it for them 
and the generations that follow. We want practical solutions that work 
for agriculture--and the environment.
    On my farm, we do everything reasonably possible to be good 
stewards of the land. For example, we've been 100 percent no-till for 
the last 10-12 years; every year we sow cover crops on our soy stubble 
and use them to spread manure on in the fall; we have--and follow--a 
nutrient management plan; we test our soil before applying nitrogen to 
make sure we don't over apply nutrients and we've installed sod 
waterways.
    On the conservation side, while most of our land is tillable with 
very little wooded land, we mow along streams to allow for habitat for 
rabbits and pheasants, and we try to keep a healthy, but manageable 
deer population. Due to the practices we use at Buffalo Valley Farms, 
our land has become much more productive over the 40 years that we've 
been farming it. I've seen our crop yields improve, and we're looking 
at our best crop year ever in 2014.
                           finding a solution
    During my years as a farmer, I've learned many things, especially 
this: excessive regulations do not benefit either the person regulated 
or that which is intended to be protected. Paperwork doesn't solve 
problems. Practical, workable solutions can--and do--solve problems. As 
I mentioned earlier, we need practical solutions to protect wildlife 
and the environment, but we need to ensure that agriculture can 
continue to operate effectively and efficiently. If we fail, then we 
jeopardize the ability of agriculture to produce safe, affordable and 
abundant food and fiber for consumers in Pennsylvania, the United 
States and the world.
    As the FWS and Congress try to make the right decisions regarding 
the NLE bat, they might want to look at the Pennsylvania Game 
Commission (PGC) as a case study. As you might know, several years ago, 
the PGC considered placing the northern long-eared bat and two other 
species impacted by white-nose syndrome on the state's endangered 
species list. Following a public comment period, the PGC decided not to 
list the three bat species. In a press release on the decision, Carl 
Roe, the PGC's Executive Director stated:

        ``. . . it is clear that more discussion, research and 
        coordination need to be done on WNS and the other outside 
        factors that are impacting our bat populations, as well as how 
        we can craft solutions that protect bats without threatening 
        the industries that employ thousands of Pennsylvanians.'' \8\
---------------------------------------------------------------------------
    \8\ PGC News Release #121-12 (October 4, 2012).

    Based upon my understanding of the issue, I'd say that we're facing 
the same issue almost 2 years later. I'd say Pennsylvania made the 
right decision then, and I do hope that the Federal Government will 
make the right decision now. Because making the wrong decision will 
have ripple effects on the environment and agriculture right on to the 
consumer.
    As a farmer, I believe that using both common sense and science is 
a logical way to approach not just farming, but regulations. It seems 
to me that this proposal to list the northern long-eared bat is flawed 
from both a scientific and common sense perspective. If the U.S. Fish 
and Wildlife Service recognizes that human activities have not had an 
appreciable effect on the species to date, why would we focus on human-
induced impacts to try to slow population decline?

    It just doesn't make sense.

    Why hurt farmers, landowners, builders and service providers--to 
just name a few--when there is no guarantee that this will stop NLE bat 
declines? Instead, shouldn't we focus on the root cause of the 
problem--white nose syndrome?
    Agriculture has long been willing to step up and do our part 
whether it's helping out in our communities or responsibly managing the 
environment or wildlife. We're more than willing to work with states 
and the Federal Government to do our part to ensure the longevity of 
the northern long-eared bat. But let's make sure we're solving the 
problem, not making new ones, because we're not targeting the root 
cause. And, in this case, it's white-nose syndrome.
    Farm Bureau recommends that the U.S. Fish and Wildlife Service not 
list the northern long-eared bat as an Endangered Species. And we urge 
Congress and the members of the U.S. House Committee on Natural 
Resources to help prevent this listing from happening.
    Additionally, I'd like to commend Chairman Hastings and members of 
the Natural Resources Committee for their continued efforts to identify 
and develop common-sense legislative reforms to the Endangered Species 
Act. The passage of H.R. 4315 in the House of Representatives 
demonstrates your commitment to update and improve the processes and 
procedures that the ESA put in place 40 years ago. We look forward to 
working with Congress to make the ESA more workable for private 
landowners and thus more beneficial for the species that it is supposed 
to help.
    Thank you again for the opportunity to testify today, and I would 
be happy to respond to your questions.

                                 ______
                                 

    The Chairman. Thank you, Mr. Brubaker. Appreciate your 
testimony.
    Now recognize Mr. John Stilley, Owner and President of 
Amerikohl Mining. You are recognized for 5 minutes.

   STATEMENT OF JOHN STILLEY, OWNER AND PRESIDENT, AMERIKOHL 
               MINING, INC., BUTLER, PENNSYLVANIA

    Mr. Stilley. Good morning. Mr. Chairman, Members of the 
House Natural Resources Committee, my name is John Stilley and 
I am President of Amerikohl Mining, along with Patriot 
Exploration Corporation and Amerikohl Aggregates. I also own 
all three companies, along with my two sons.
    Amerikohl Mining mines coal by the surface mining method in 
13 counties in Pennsylvania. Last year, we employed 125 
hardworking men and women, produced 1 million tons of coal, all 
of which was marketed to local utilities' industrial accounts. 
Since 1978, we have completed mining of over 350 separate mine 
sites, and have successfully reclaimed the land to productive 
post-mining uses, including parks, residential communities, 
working farms and forest land.
    Approximately one-third of these sites consisted of lands 
which were mined previously in the 1940s and 1950s when no 
reclamation was required or done. As part and parcel to our 
mining efforts, we have reclaimed on these sites miles upon 
miles of existing high walls, 15,000 acres of abandoned mine 
lands, and rehabilitated many, many miles of polluted streams, 
all at no cost to the taxpayer. Amerikohl has also won over 70 
state and Federal awards for outstanding reclamation.
    Amerikohl Aggregates operates two stone quarries in 
Pennsylvania, and annually produce and market over 1.25 million 
tons of stone and aggregate used primarily to build and 
rehabilitate Pennsylvania's infrastructure, and Patriot 
Exploration has drilled and currently operates 250 oil and gas 
wells.
    I am here today on behalf of the Pennsylvania Coal 
Alliance, a trade association representing the interests of the 
state's bituminous coal industry. Our Pennsylvania industry is 
responsible for 60 million tons of production, and the creation 
of 40,000 jobs in the state.
    With that, please allow me to address the potential impact 
on the mining and quarrying industry if the Northern Long-Eared 
Bat is listed as an endangered species, along with my 
experience with the endangered listing of the Indiana Bat.
    The total amount of protected Indiana Bat habitats in 
Pennsylvania now totals over 3 million acres, or close to 10 
percent of Pennsylvania. This encompasses almost 80 percent of 
Fayette County, and similar portions of Armstrong, Lawrence, 
Beaver and Butler Counties, specifically where we mine coal and 
quarry stone. Amerikohl has been dealing with the problem of 
the endangered Indiana Bat over the past 10 years, and expended 
millions of dollars in doing so, between mitigation fees, paid 
protection enhancement plans implemented, mist net surveys, 
seasonal limits on our lessees' ability to harvest their timber 
estates, additional permit costs, legal defense of our rights 
with other Federal agencies, scheduling conflicts, and on and 
on. Additionally, compliance with the requirements imposed have 
negatively impacted our ability to manage our reserves to their 
optimal work, keep our men and capital employed to the fullest 
extent possible, and obstructed our ability to comply with 
contractual supply obligations.
    We, along with all in our industry, have stepped up and 
done all that has been asked of us and required of us. All the 
while, the Indiana Bat population over the same time frame has 
been decimated by White Nose Syndrome, rather than by lack of 
habitat or direct impacts from incidental take due to industry 
practices or any other human influences. Similar to the Indiana 
Bat, the Pennsylvania Game Commission data documented decline 
in the Northern Long-Eared Bats primarily due to the White Nose 
Syndrome, and again, not industry practices or any human 
influences.
    Unlike the Indiana Bat, the Northern Long-Eared Bat's 
summer and winter habitat ranges across the entire state, with 
a variety of forested habitats used for roosting and foraging. 
Should the Northern Long-Eared Bat be listed, the same limits 
and restrictions as mandated by the presence of the Indiana Bat 
would be imposed over most, if not all of Pennsylvania.
    Although the U.S. Fish and Wildlife Service announced on 
June 30 a 6-month extension on any final decision regarding a 
listing, the Service's State College regional office is 
treating permit reviews as though the listing has already been 
made. In response to an application for a limestone quarry 
operation Amerikohl submitted for review, I was instructed via 
letter from the field office that this site is located within 
the range of the Northern Long-Eared Bat, and although the 
species is not listed, the letter cautioned us to address this 
issue in the permit application or face project delays if a 
listing is finalized.
    So despite the U.S. Fish and Wildlife Service's 
acknowledgement about the scientific uncertainty associated 
with the available data for making a determination, despite its 
announcement to defer a decision until April 2, 2015, in order 
to fully analyze the data, and without any justifiable 
certainty that a proposed activity will indeed threaten the 
continued existence of the Northern Long-Eared Bat, the 
Pennsylvania field office is instructing all permit applicants 
to implement protective measures for a non-listed species to 
avoid permit delays.
    This brings me to my final and principal comment. The 
regulatory process is in turmoil, devoid of science and common 
sense. Standards are constantly changing pursuant to regulatory 
and policy whims, not statutory or regulatory mandates, and all 
driven by a few who believe they know what is in the public's 
best interest. This well-intentioned legislation is passed by 
Congress, never intended or anticipated at takeover expansion 
to the extent we are seeing today by unelected bureaucrats for 
reasons very, very difficult for me to understand, creating 
many distortions in the marketplace and making our great Nation 
uncompetitive in a world economy.
    The most important recommendation and request I can make to 
this committee today is to restore reason and balance to the 
process, and take back the power and authority invested in you 
by the electorate. Let size trump whim and hold these Federal 
bureaucrats accountable to the public law.
    Thank you very much.
    [The prepared statement of Mr. Stilley follows:]
  Prepared Statement of John M. Stilley, President, Amerikohl Mining, 
                                  Inc.
    Good morning Mr. Chairman, members of the House Natural Resources 
Committee. My name is John Stilley and I am the President of Amerikohl 
Mining, Inc. which is headquartered in Butler, Pennsylvania. I am also 
President of Patriot Exploration Corp. and Amerikohl Aggregates, Inc.
    Amerikohl mines coal by the surface mining method in 13 
Pennsylvania counties. Last year we produced approximately one (1) 
million tons of coal and employed 120 workers. Since 1978, we have 
completed mining of over 300 separate mine sites and have successfully 
reclaimed the land to productive post-mining uses including parks, 
residential communities, working farms, and forestland. Approximately 
1/3 of these sites consisted of areas which had been mined in the 1940s 
and 1950s when no reclamation was required to be done. Amerikohl has 
won over 65 awards for outstanding reclamation work, has reclaimed over 
15,000 acres of abandoned mine lands and restored miles of streams at 
no cost to taxpayers.
    We are also in the stone and natural gas businesses. This year we 
will produce 1.25 million tons of stone and aggregates used to build 
and rehabilitate Pennsylvania's infrastructure. Additionally we 
currently operate over 200 wells, producing gas and oil, from the Upper 
Devonian formation and participate in the drilling and production from 
28 Marcellus dry gas wells which are all in Pennsylvania.
    I am also here today on behalf of the Pennsylvania Coal Alliance 
(PCA), a state trade association representing the interests of the 
state's bituminous coal mining industry.
    Pennsylvania is the Nation's fourth leading coal producing state, 
with about 67 million tons of both anthracite and bituminous coal mined 
in 2013.
    The coal industry is a major contributor to Pennsylvania's economy. 
Its annual economic benefit to the Commonwealth exceeds $4 billion and 
it is responsible for the creation of almost 40,000 direct and indirect 
jobs.
    Most of the coal produced in Pennsylvania is used to generate 
affordable and reliable electricity.
    I appreciate being asked to testify today on the potential impacts 
for mining if the Northern Long-Eared Bat (NLE) is listed as an 
endangered species.
    Because of time constraints, I have attached, for the record, 
specific comments submitted by the PCA to the U.S. Fish and Wildlife 
Service (FWS) on this matter. These comments are detailed, 
Pennsylvania-specific and highly relevant to this proceeding.
    My testimony will highlight our major concerns with such action 
and, if time permits, I would like to address the committee on an 
important overarching issue that is a critical impediment to the future 
viability of coal mining.

    Range--The NLE Bat has a much larger range and a greater presence 
in Pennsylvania than the Indiana Bat. (As a frame of reference, the 
total amount of protected Indiana Bat habitat in Pennsylvania today 
totals over 3 million acres). A listing would therefore, severely 
restrict any permitted earth moving activity proposed within a broad 
geographic area, particularly among the mineral extraction industry. 
The result would be permit delays and increased business costs without 
any assurance of commensurate environmental benefits.

    Disease Not Habitat Issue--The NLE Bat has been hard-hit by White-
Nose Syndrome (WNS), especially in the United States. Indeed, the FWS 
repeatedly recognizes that the WNS, not any human activity, alone is 
responsible for the major impacts to the NLE Bat that have been 
reported.

Any species protection requirements (e.g. tree clearing restrictions) 
that would accompany a Federal listing will not address the WNS impact 
on NLE Bats. It would be senseless to impose significant costs on a 
multitude of industries whose activities would not affect the bat's 
population with restrictions that would not in any measurable manner 
preserve the species.

    Sufficiency and Accuracy of Data--Even the FWS recognizes that 
there has been ``. . . substantial disagreement regarding the best 
available science . . .'' as it relates to the NLE Bats current and 
predicted population trends and threats. Given the significant permit-
related implications of a proposed listing, unless science is available 
to justify the action and unless reasonable expectations exist to 
demonstrate that such action would produce the intended benefit, the 
FWS should not proceed with a designation. On this particular issue, 
both parameters--science and expectations--are noticeably lacking.
                           cost implications
Increased Costs Associated With Bat Mist Netting
    In 2014, the USFWS issued a 2014 Indiana Bat Summer Survey Guidance 
Overview which provided the protocol for conducting bat surveys in 
Pennsylvania, which is within the Northeast Region (Region 5). While 
the initial intent was to reissue range-wide survey guidelines, the 
Northeast Region imposed a much higher level of survey effort (mist 
netting and acoustic) than other FWS regions. For ``non-linear'' 
projects, which are most common for the mining industry, the following 
increases in effort and costs have been observed over the past several 
years.

----------------------------------------------------------------------------------------------------------------
                                          Required Survey Effort/
                  Year                              Site            Increase in Effort    Approximate Cost/Site
----------------------------------------------------------------------------------------------------------------
   2014                                        42 net nights/123                10.5x                   $55,000
                                          acres of suitable
                                          habitat
   2013                                        24 net nights/123                   6x                   $30,000
                                          acres of suitable
                                          habitat
   2012                                         4 net nights/123                   --                   $ 5,000
                                          acres of suitable
                                          habitat
----------------------------------------------------------------------------------------------------------------

    As you can see, the level of bat survey effort has increased more 
than 10-fold over the past 3 years.

    Example: If a mining company has a 500 acre forested site, it would 
cost roughly $275,000 to conduct a bat survey in Pennsylvania and the 
northeast region.
Telemetry Costs
    If the proposed listing of the NLE Bat proceeds, any NLE bat 
captures will require radio telemetry work in order to locate roosting 
trees for individual bats. For each NLE Bat (and Indiana Bat) captured 
during a mist net survey, it costs approximately $7,000 to track and 
monitor each individual bat.
    During the 2014 mist netting season (May 15 to August 15), a mid-
size environmental consulting firm in Pennsylvania captured 55 NLE Bats 
in Pennsylvania, Ohio, and West Virginia. This equates to an additional 
$385,000 of costs that the industry will shoulder without any 
assurances of species protection.
Miscellaneous Cost Considerations
    Additional costs associated with preparation of Habitat 
Conservation Plans (HCPs), tree clearing restrictions, and long term 
avoidance measures are also significant and need to be considered when 
discussing the economic impacts associated with the proposed listing of 
the NLE Bat.

    Permitting Impacts--In addition to costs, unjustifiable and 
unpredictable Federal action can wreak havoc on our ability to obtain 
permits, a prerequisite to actual mining.
    Due to the nature of the operation, permit delays are most 
troublesome for surface mine operators.
    Since surface mine projects in Pennsylvania are significantly 
smaller in terms of reserves and production than underground mine 
operations and are completed in shorter time frames, permits for 
surface mining are required on a more frequent basis. As such, 
indeterminate permit delays acutely affect this type of mining method 
more than other type of mining.
    For example, Amerikohl generally operates between 8 to 10 mining 
sites on an ongoing basis in a given year. On average, it takes us 
about 9 months to complete a job. Consequently, we are continually 
applying for permits to mine. Delays on permit issuance challenge the 
company's ability to maintain continuity of operations, meet our 
contractual supply obligations and keep our men and women working full 
time.
    In addition, most of Pennsylvania's easily accessible surface coal 
reserves have already been mined and a high percentage of our remaining 
reserves are off-limit because of unilateral and unjustifiable 
regulatory actions, like this proposed listing, that more often than 
not are precipitated at the Federal level.
    When all factors are considered, surface operators have very little 
viable options left on where to mine. Permitting restrictions further 
reduce these options and unless we get a more timely and predictable 
process, our remaining reserves will be sterilized, mining derived 
income and jobs will be lost and we all lose the benefits of cheap and 
reliable coal based electricity.

    Implementation--Although the FWS announced on June 30 a 6-month 
extension on any final decision regarding a listing, the Service's 
State College Regional Office is treating permit reviews as though the 
listing has already been made.
    In response to a permit application for a limestone quarry that I 
am in the process of attempting to secure, I was instructed via letter 
by the field office that the site is located within the range of the 
NLE bat. Although the species is not listed, the letter cautioned us to 
address this issue in the permit or face project delays if a listing is 
finalized.
    So, despite the FWS' acknowledgement about the scientific 
uncertainty associated with the available data for making a 
determination, despite its announcement to defer a decision until April 
2, 2015, to clarify and ``fully analyze'' the data, and without any 
justifiable certainty that a proposed activity will indeed threaten the 
continued existence of NLE bats, the Pennsylvania field office is 
instructing permit applicants to implement protective measures for a 
non-listed species to avoid permit delays.
    This brings me to my final, overarching comment--the regulatory 
process is in turmoil, devoid of science and commonsense; defined by 
standards that are constantly changing pursuant to regulatory whim, not 
statutory or regulatory mandates; and driven by a select few who 
believe they know what is in the public's best interest.

    Overarching Concern--It would be easy to simply refer to this 
situation as the result of a deliberate and targeted assault on the 
coal industry. Clearly, the Obama administration's intent is to end 
mining and transform America's usage away from coal.
    The administration's actions are certainly a challenge to the 
future viability of the industry and its workforce, as well as the 
price and reliability of electric generation. But the impacts of these 
actions are more profound than a war on coal.
    Perhaps, most insidious is the manner in which these requirements 
are being applied--by policy, not by legislation or regulation. Under 
the Obama administration, Federal agencies have steadily usurped 
permitting and enforcement authority heretofore reserved to states by 
establishing through policies restrictions on both the mining and use 
of coal that are harsh, misguided and not supported by science. As a 
result, mining permits are delayed or denied, jobs are lost, and coal 
reserves are unnecessarily sterilized.
    This Federal overreach tramples on public accountability and 
transparency while eroding our system of checks and balances that is 
the core of a true democracy.
    My most important recommendation that I can make to this committee 
today is to restore reason and balance to the process, let science 
trump whim and hold these Federal bureaucrats accountable to public 
law.
    Thank you.

Attachment: Pennsylvania Coal Alliance Comments

                               ATTACHMENT

                        Pennsylvania Coal Alliance,
                                            Harrisburg, PA,
                                                   January 2, 2014.

Via Docket submittal at www.regulations.gov

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
MS2042-PDM
Arlington, VA 22203

Re: Docket No. FWS-R5-ES-2011-0024--Endangered and Threatened Wildlife 
        and Plants; 12-Month Finding on a Petition To List the Eastern 
        Small-Footed Bat and the Northern Long-Eared Bat as Endangered 
        or Threatened Species; Listing the Northern Long-Eared Bat as 
        an Endangered Species

    To Whom It May Concern:

    The Pennsylvania Coal Alliance (PCA) respectfully submits the 
following comments regarding the U.S. Fish and Wildlife Service's 
(USFWS) request for comments pertaining to the 12-month Finding on a 
Petition to List the Northern Long-Eared Bat (NLE) as a Threatened or 
Endangered Species and to NOT list the Eastern Small-Footed Bat, as 
noticed in the October 2, 2013 Federal Register (78 Fed. Reg. 61046), 
and the extension of the comment period in the December 2, 2013 Federal 
Register (78 Fed. Reg. 72058).
    PCA is the principal trade organization representing underground 
and surface bituminous coal operators in Pennsylvania, as well as other 
associated companies whose businesses rely on coal mining and the 
thriving coal economy. PCA member companies produce almost 80 percent 
of the bituminous coal mined annually in Pennsylvania, which totaled 
nearly 60 million tons in 2012. PCA member companies operations are 
subject to both state and federal laws for the protection of threatened 
and endangered species. Accordingly, PCA has an immediate interest in 
the USFWS' intent to list the Northern Long-Eared bat as a Threatened 
or Endangered Species and not to list the Eastern Small-footed Bat 
under the Endangered Species Act of 1973.
General
    In the Federal Register notice, USFWS indicated they have 
determined that the NLE is in danger of extinction, predominantly due 
to the threat of White Nose Syndrome (WNS). PCA understands the damage 
WNS has inflicted on the NLE, as well as other bats. However, we 
disagree with the USFWS' proposed rule to list this species as 
Endangered, and we believe not enough data and information has been 
collected range wide to support a Threatened designation for the NLE.

    Listing the NLE as Threatened or Endangered will have potentially 
significant permit-related regulatory implications for our members' 
operations with no positive effect on the bats.

    Accordingly, we offer the following specific comments:
1. It is Premature and Scientifically Inappropriate to List the NLE 
        Species Without Peer Reviewed Data.

    The Endangered Species Act requires the USFWS to determine the 
status of a species on the basis of the best scientific and commercial 
data available after conducting a review of the status of the species. 
In the Federal Register notice, USFWS indicates they ``will seek peer 
review'' and are ``seeking comments from knowledgeable individuals with 
scientific expertise to review our analysis of the best available 
science and application of that science and to provide any additional 
scientific information to improve this proposed rule.'' The notice goes 
on to state that ``our final determination may differ from this 
proposal.'' \1\
---------------------------------------------------------------------------
    \1\ Ibid.

    Because the proposed rule has not undergone peer review, it may not 
reflect the best scientific and commercial data available, as required 
by Section 4 of the Act. The peer review process ensures that any 
proposed listing meets the requirements of the Endangered Species Act 
of 1973 and allows a critique of USFWS' work, as well as ensuring that 
any additional scientific information is considered by the USFWS ahead 
---------------------------------------------------------------------------
of their actions.

    The June 2012 USFWS document entitled, ``Information Quality 
Guidelines and Peer Review,'' \2\ outlines the USFWS policy and 
procedures for reviewing, substantiating, and correcting the quality of 
information it disseminates to the public. Part VI contains information 
quality methods and the USFWS guidance on peer review of influential 
information. This section expands on peer review being conducted prior 
to the public comment period, specifically stating, ``. . . peer review 
prior to the public comment period should be considered.'' \3\
---------------------------------------------------------------------------
    \2\ Found at: http://www.fws.gov/informationquality/topics/
InformationQualityGuidelinesrevised 6_6_12.pdf.
    \3\ Ibid, page 12.

    We also agree that this step should occur before the USFWS proposes 
to list the species in the Federal Register as Threatened or Endangered 
---------------------------------------------------------------------------
and as such, the decision to list is premature.

    The USFWS' Information Quality Guidelines and Peer Review also 
recognizes the White House Office of Management and Budget's Final 
Information Quality Bulletin for Peer Review.\4\ That document 
discusses the timing of peer reviews suggesting early peer review leads 
to a better end product, and recognizes that ``peer review should 
precede an opportunity for public comment to ensure that the public 
receives the most scientifically strong product (rather than one that 
may change substantially as a result of peer reviewer suggestions.'' 
\5\
---------------------------------------------------------------------------
    \4\ Found at: http://www.cio.noaa.gov/services_programs/pdfs/
OMB_Peer_Review_Bulletin_m05-03.pdf.
    \5\ Ibid, page 21.

    The Endangered Species Act of 1973 requires USFWS to base its 
decisions on best available science. Given we do not have the data, we 
are unable to discern if the data USFWS utilized for these proposed 
actions went through peer review. Again, USFWS should not be basing its 
proposed listing decisions on data that has not been subjected to the 
peer review process by qualified specialists.
2. There is Insufficient and Incomplete Data to List the NLE and to 
        Allow for Substantive Comments.

    Throughout the entire Federal Register notice discussion, the USFWS 
acknowledges and notes there are many unknowns with respect to the NLE 
and WNS. For example, there is insufficient data regarding:

     NLE hibernation patterns

     NLE migration patterns

     NLE population mortality and susceptibility effects due to 
            WNS

     The overall understanding of WNS and its effects on bats

    This information is vitally important to the determination of the 
proper course of action regarding the NLE. And while we understand that 
it is the USFWS' mission to protect endangered and threatened species, 
for USFWS to act on a petition to list the NLE bat species based on 
inadequate data and without any demonstration that the listing would 
preserve or assist in the recovery of the NLE species is not a prudent 
use of the Service's time and budget--not to mention the resulting 
significant economic impact to the Pennsylvania coal industry to comply 
with the requirements that would result from the listing of the NLE 
bat.
    Further, we are very concerned at the references in the Notice to 
``unpublished data from Pennsylvania'' and data that has not been peer 
reviewed. In an attempt to provide substantive and meaningful comments, 
PCA requested the unpublished data for Pennsylvania from the USFWS via 
email and received no data. We verbally requested the same information 
from the Pennsylvania Game Commission and also received no information. 
It is impossible for us to provide meaningful, scientific-based 
information to the USFWS without access to all available data.
    However, as part of PCA's September 10, 2012 comments submitted to 
the Pennsylvania Game Commission in response to its Notice of Request 
for Comments relating to possible measures to protect the NLE and two 
other bats,\6\ we provide you with the following analysis which 
illustrates that Pennsylvania data calls into question support for an 
endangered listing for the NLE.
---------------------------------------------------------------------------
    \6\ Found at: http://www.pabulletin.com/secure/data/vol42/42-32/
1555.html.
---------------------------------------------------------------------------
    As noted in our comments to the Pennsylvania Game Commission, a 
preliminary review of bat capture data from four projects which were to 
be reported in 2012 to the Pennsylvania Game Commission by a PCA member 
company indicates that two of the bat species--the Little Brown and the 
NLE, remain common throughout the western portion of the state where 
the surveys were conducted. The data was recorded from 547 bat captures 
at 80 net sites in Armstrong, Indiana, Clarion, Venango, Somerset, and 
Jefferson Counties. As can be seen in the chart below, approximately 
27% of the bats captured were NLE and approximately 26% were Little 
Brown bats. Both species were captured at an average of 64% of the 
sites that were netted on these four projects.
    Moreover, summer bat netting data from the PA Game Commission 
(Attachment, named ``Exhibit 2'') for the years 2009 and 2010-11 \7\ 
indicates that the number of NLE captured in 2010-11 was 8,554, which 
is a substantial increase over the 4,298 NLE netted during the prior 
period. Also, a summary of bat survey contractor netting activities for 
Pennsylvania from 1999 through 2010 (Attachment, named ``Exhibit 3'') 
actually evidences an upward trend in captures of the NLE.
---------------------------------------------------------------------------
    \7\ At the time of our September 10, 2012 comments, all the 2011 
data had not yet been reviewed and tabulated. Even assuming there were 
not additional bats added to the 2010-2011 total (a most unlikely 
assumption), the data for the period 2009-2011 does not reflect a 
decline in the NLE population.
---------------------------------------------------------------------------

                                2012 PA

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


3. The NLE is Already Protected Due to Extensive Protection 
        Measures for Other Bats.

    The USFWS states in the Federal Register notice that conservation 
methods are already underway to protect the NLE, and

        ``Although there are various forms of habitat destruction and 
        disturbance that present potential adverse effects to the 
        northern long-eared bat, this is not considered the predominant 
        threat to the species. Even if all habitat-related stressors 
        were eliminated or minimized, the significant effects of WNS on 
        the northern long-eared bat would still be present.'' \8\
---------------------------------------------------------------------------
    \8\ 78 Fed. Reg. 61046 (October 2, 2013), 61061.

    The Federal Register Notice itself further states that ``the 
eastern small-footed bat and northern long-eared bat have likely 
benefited from the protections given to the Indiana bat and its winter 
habitat, as both species' ranges overlap significantly with the Indiana 
bat's range.'' \9\
---------------------------------------------------------------------------
    \9\ Ibid, 61058.
---------------------------------------------------------------------------
    In PCA's September 30, 2012 comments to the Pennsylvania Game 
Commission in response to its Notice of Request for Comments relating 
to possible measures to protect the NLE and two other bats, we indicate 
that extensive protections already afforded to the state- and 
federally-listed Indiana Bat are benefiting the above bat species.
    Before a permit to conduct coal mining activities in Pennsylvania 
can be issued, a diversity index search must be conducted to determine 
whether the area of the proposed activity is located within a 10-mile 
radii of any locations where Indiana Bats hibernated, were captured, or 
where maternity roosting occurred.
    If the project is located for example within a 10-mile radius of 
one of the 19 known Indiana Bat hibernacula as alleged by the 
Pennsylvania Game Commission, the applicant must submit a Protection 
and Enhancement Plan which, among other things, precludes the applicant 
from cutting any trees during specific months of the year and which 
further obligates the applicant to implement specific measures to 
protect and enhance the Indiana Bat.
    Given that the NLE appear to share hibernacula with the Indiana 
Bat, and significant protective measures are already being implemented 
to protect the Indiana Bat, by default, the NLE. The data we discussed 
above from our September 30, 2012 comments to the PGC supports this 
assertion.
    As an example, Fayette County in southwestern Pennsylvania 
allegedly has two Indiana Bat hibernacula. Drawing a 10-mile radius 
around each location (which does not appear to overlap), you encompass 
an area containing approximately 402,000 acres, or almost 80% of 
Fayette County's total area of approximately 510,000 acres. PCA asserts 
the existing Indiana Bat conservation management measures are, by 
default, already protecting the NLE species in Fayette County. A 
similar result is present in other Pennsylvania counties where mineral 
extraction occurs, including Somerset, Beaver and Lawrence Counties.
    Indeed, even accounting for some overlap in the protective radii 
around the aforementioned 19 known Indiana Bat hibernacula, the total 
amount of protected bat habitat in Pennsylvania already totals over 
3,000,000 acres at a minimum, or close to ten percent of Pennsylvania. 
Add in all 68 of the ``special concern'' hibernacula periodically 
monitored by the Pennsylvania Game Commission, the amount of protected 
area increases to almost 49 percent of Pennsylvania.
    Because the range of the NLE in Pennsylvania overlaps with the 
Indiana Bat, according to the data PCA has available to us, all 
conservation management efforts that are currently utilized here in 
Pennsylvania to protect the Indiana Bat, serve to protect the NLE as 
well.
4. Bat Conservation Management Actions Need to Address WNS.
    We are aware of the requirements to provide a means for listing 
species as endangered and giving them limited protection, and the 
associated conservation and recovery planning within the context of the 
Endangered Species Act. However, the connection between conservation 
management actions for the NLE bat, and bats in general, with the 
primary threat of WNS are out of sync. USFWS states:

        ``no other threat is as severe and immediate to the northern 
        long-eared bat's persistence as the disease, white-nose 
        syndrome (WNS).'' \10\
---------------------------------------------------------------------------
    \10\ Ibid.
---------------------------------------------------------------------------
    USFWS further states,

        ``Although there are various forms of habitat destruction and 
        disturbance that present potential adverse effects to the 
        northern long-eared bat, this is not considered the predominant 
        threat to the species. Even if all habitat-related stressors 
        were eliminated or minimized, the significant effects of WNS on 
        the northern long-eared bat would still be present.'' \11\
---------------------------------------------------------------------------
    \11\ Ibid, 61061.

---------------------------------------------------------------------------
    And,

        ``Although conservation efforts have been undertaken to help 
        reduce the spread of the disease through human-aided 
        transmission, these efforts have only been in place for a few 
        years and it is too early to determine how effective they are 
        in decreasing the rate of spread.'' \12\
---------------------------------------------------------------------------
    \12\ Ibid, 61066.

    Furthermore, information on USFWS' website admits to a lack of 
knowledge surrounding WNS and its cause.\13\
---------------------------------------------------------------------------
    \13\ http://www.fws.gov/northeast/pdf/white-nosefaqs.pdf.
---------------------------------------------------------------------------
    Pennsylvania coal mining activities typically are not of the type 
that would compromise bat habitat and reproduction areas. Yet potential 
permit-related restrictions on our regulated members due to 
conservation management measures would impose resource burdens that 
would fail to address the primary driver behind this proposed listing 
by USFWS--the effect of WNS on NLE.
    Given this, we suggest the USFWS' efforts should be directed to 
completing additional research to determine the exact original cause of 
WNS, possible treatment strategies for bats, assessing under what 
conditions the fungus is transmitted and how it spreads, determining 
what the optimal environmental conditions are that allow the growth and 
transmission of the fungus, determining what is driving the spread of 
the fungus, and determining the differences in those colonies affected 
and unaffected by WNS. Only when this critical information is known 
would USFWS then be able to determine appropriate listing actions, if 
necessary. It is inappropriate and scientifically unwarranted to take 
action to list the NLE without this knowledge.
5. Lack of Information Regarding Critical Habitat
    In the Federal Register notice, USFWS identifies the situations at 
50 CFR 424.12(a)(2) under which critical habitat is not determinable:

     Information sufficient to perform required analyses of the 
            impacts of the designation is lacking, or

     the biological needs of the species are not sufficiently 
            well known to permit identification of an area as critical 
            habitat.

    The notice goes on,

        ``We reviewed the available information pertaining to the 
        biological needs of the species and habitat characteristics 
        where this species is located. Since information regarding the 
        biological needs of the species is not sufficiently well known 
        to permit identification of areas as critical habitat, we 
        conclude that the designation of critical habitat is not 
        determinable for the northern long-eared bat at this time.''

    These statements, combined with other statements found throughout 
the Federal Register notice serve to reinforce PCA's position that 
existing data does not support an endangered listing and there is 
insufficient data to support a Threatened listing of the NLE.
    The goal of the Endangered Species Act of 1973 is to protect and 
preserve species. It is irrelevant whether critical habitat is 
``determinable'' because no critical habitat designation will serve to 
protect any bats against WNS.
6. USFWS Decision NOT to List Eastern Small-footed Bat is Appropriate.
    In the Federal Register notice, the USFWS indicates the factors 
contributing to their decision NOT to list the Eastern Small-footed bat 
as threatened or endangered including:

     Eastern Small-footed bats appear to be less susceptible to 
            WNS than other cave bat species, (these factors include 
            hibernacula selection, total time spent hibernating in 
            hibernacula, location within the hibernacula regarding 
            lower humidity and higher temperature fluctuations),

     solitary roosting behavior,

     insignificant population declines,

     existing State listings, and

     less susceptible to mortalities caused by man-made 
            equipment.

    We support the USFWS' position NOT to list the Eastern Small-footed 
bat as threatened or endangered.

7. USFWS Agreements with External Parties are Precluding Solid Science.

    On a bigger picture, the USFWS signed an agreement with the Center 
for Biological Diversity on July 12, 2011 requiring the Agency to make 
initial or final decisions on whether to add hundreds of imperiled 
plants and animals to the Endangered Species list by 2018.

    The USFWS subsequently developed a Listing Program Work Plan to 
address the very large increase in the number of species petitioned for 
listing.\14\ According to the USFWS' Listing Program Work Plan 
Questions and Answers,
---------------------------------------------------------------------------
    \14\ http://www.fws.gov/Endangered/improving_ESA/
listing_workplan_FY13-18.html.

        ``. . . the Service was petitioned to list an average of 20 
        species per year from 1994 to 2006. By contrast, since 2007, 
        the Service has been petitioned to list more than 1,250 
        species, nearly as many species as the agency listed during the 
        previous 30 years of administering the ESA. The Service was 
        petitioned to list 695 species in 2007, 56 species in 2008, 63 
        species in 2009, and 451 species in 2010 . . .. The deadlines 
        for responding to this large increase in petitions, driven in 
        large part by these megapetitions, have overwhelmed the 
        capacity of the Listing Program and required diverting 
        significant human and financial listing resources to the task 
        of completing findings for the petitioned species, to such an 
        the extent that no new listing determinations were initiated in 
        FY 2010. The Service published final listing determinations for 
        51 species in FY10, and 13 species in FY11. Most were listed 
        with a concurrent critical habitat designation.'' \15\
---------------------------------------------------------------------------
    \15\ http://www.fws.gov/endangered/improving_esa/
FWS%20Listing%20Program%20Work %20Plan%20FAQs%20FINAL.PDF.

    We believe the workload imposed by these mega-petitions is 
precluding good science in USFWS' attempts to avoid legal 
repercussions. Furthermore, we suggest that USFWS financial resources 
that are being expended in these legal actions could better be 
utilized, for example, on WNS research.
CONCLUSION

    Based on the above, we disagree with the USFWS' proposed rule to 
list the NLE species as Endangered and believe not enough information 
is known to list it as Threatened. We support the decision not to list 
the Eastern Small-footed Bat.

    We appreciate consideration of our comments. Should you have any 
questions or comments, please do not hesitate to contact us.

            Sincerely,

                                              George Ellis,
                                                    President, PCA.

Attachments: Exhibits 2 and 3

                               EXHIBIT 2

      County Summary of Statewide Bat Counts for Period 2009-2011 
                         Taken From PGC Reports
                  (only a partial count for year 2011)
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
   
                             EXHIBIT 3

       Summary of Contractor Activities 1999-2011 Taken From PGC 
                                Reports
                  (only a partial count for year 2011)
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    

                                __
                                 

    The Chairman. Thank you very much for your testimony.
    Now recognize Ms. Mollie Matteson, Senior Scientist with 
the Center for Biological Diversity out of Richmond, Vermont. 
Recognized for 5 minutes.

  STATEMENT OF MOLLIE MATTESON, SENIOR SCIENTIST, CENTER FOR 
            BIOLOGICAL DIVERSITY, RICHMOND, VERMONT

    Ms. Matteson. Thank you, Chairman Hastings, Representative 
Thompson and Representative Perry. Thank you for the 
opportunity to testify today.
    My name is Mollie Matteson and I am Senior Scientist at the 
Center for Biological Diversity.
    The Northern Long-Eared Bat faces a grave crisis. Its 
plummeting populations over the last 8 years have put it on the 
fast track to extinction. It is the very kind of wildlife that 
needs the protection of the Endangered Species Act, just like 
the Bald Eagle, the Peregrine Falcon, Grizzly Bear, and other 
emblematic species of our Nation that have benefited greatly 
from the protection of the Act in the past.
    Prior to the advent of the fungal disease, White Nose 
Syndrome, the Northern Long-Eared Bat was rare, patchily 
distributed throughout its range, and almost never found in 
large numbers anywhere. Scientists have recognized that this 
species is vulnerable to a number of threats including habitat 
loss, and in fact, this bat may have been in decline even 
before the arrival of White Nose Syndrome.
    Since 2006, when White Nose Syndrome was first documented, 
the evidence has been clear; the Northern Long-Eared Bat 
population has plummeted. In the Northeast, once a stronghold 
for the species, scientists have estimated that the population 
has declined by 99 percent. In many bat caves, it has 
disappeared altogether. The disease is now in 25 states, taking 
in all of the most important territory for this species. 
According to peer-reviewed scientific models, White Nose 
Syndrome will eventually spread across most of North America.
    Prominent bat experts have referred to the precipitous loss 
of the Northern Long-Eared Bat, and six other bat species also 
affected by White Nose Syndrome, as the worst wildlife health 
crisis in memory. Endangered Species Act protection offers the 
best and perhaps only means for saving this species from 
extinction. The Act has a 99 percent success rate at keeping 
imperiled species from going extinct. The scale of this bat 
extinction crisis is not something that any one state has the 
capacity to address. Only the Endangered Species Act provides 
the long-term and broad-scale framework for conservation and 
recovery that is required to restore the Northern Long-Eared 
Bat to healthy numbers once again.
    The Endangered Species Act is already working to recover 
hundreds of species in the eastern and central United States, 
including several bats, as well as birds, fish, turtles and 
many other creatures that not only add to the richness and 
beauty of this part of the world, but also are vital to 
environmental health and ultimately long-term social and 
economic well-being. As with currently protected species, the 
rules protecting the Northern Long-Eared Bat will have built-in 
flexibility that allows sustainable and responsible 
development.
    Scientists estimate that bats provide billions of dollars 
in crop protection services across the United States. The 
Northern Long-Eared Bat controls moths and beetle pests that 
attack timber and crops. Without this bat, the challenges 
farmers and the timber industry face will grow, not lessen. 
Because the Northern Long-Eared Bat is so depleted, it is 
important that we safeguard survivors from as much harm as 
possible, including harm to their critical habitat. Responsible 
environmental stewardship calls for this approach. This is what 
the Endangered Species Act is designed to promote, and this is 
what Americans wish the Act to do; to protect for future 
generations the diverse and magnificent natural treasures of 
this Nation.
    Thank you very much.
    [The prepared statement of Ms. Matteson follows:]
 Prepared Statement of Mollie Matteson, M.S., Senior Scientist, Center 
                        for Biological Diversity
                              introduction
    The northern long-eared bat faces a grave crisis. Its plummeting 
populations over the last 8 years have put it on the fast track to 
extinction. It is the very kind of wildlife that needs the protection 
of the Endangered Species Act, just like the wide-ranging bald eagle, 
peregrine falcon, grizzly bear, and other emblematic species of our 
Nation that have benefited greatly from the crucial protection of the 
Endangered Species Act in the past.
    Prior to the advent of the fungal disease, white-nose syndrome, the 
northern long-eared bat was rare, patchily distributed throughout its 
range, and almost never found in large numbers anywhere. Scientists 
recognized the species as vulnerable to a number of threats, such as 
habitat loss, and it may have been in decline even before the arrival 
of the disease.\1\
---------------------------------------------------------------------------
    \1\ Ingersoll, T.E., B.J. Sewall and S.K. Amelon. 2013. Improved 
analysis of long-term monitoring data demonstrates marked regional 
declines of bat populations in the eastern United States. PLoS ONE 
8(6): e65907. doi:10.1371/journal.pone.0065907.
---------------------------------------------------------------------------
    However, since 2006, when white-nose syndrome was first documented 
in North America, the trends have been clear: the population of the 
northern long-eared bat has plummeted. In the Northeast, once a 
stronghold for the species, the population has declined by an estimated 
99 percent. In many bat caves, it has disappeared altogether. The 
disease is now in 25 states, ravaging bat populations from New England, 
to the Mid-Atlantic and Midwest, to the South. These affected areas 
take in all of the most important territory for the species. White-nose 
syndrome continues to advance, and according to scientific models, will 
eventually spread across most of North America.
    Prominent bat experts have referred to the precipitous loss of the 
northern long-eared bat, and six other bat species also affected by 
white-nose syndrome, as the ``worst wildlife health crisis in memory.'' 
The Endangered Species Act offers the best and perhaps only means for 
saving the northern long-eared bat. The Act has a 99 percent success 
rate at keeping species from the brink of extinction. Further, the 
scale of the problem is not something that any one state has the 
capacity to address. Only the Endangered Species Act provides the long-
term and broad scale framework for conservation and recovery that is 
required to restore the northern long-eared bat to healthy numbers once 
again.
    The Endangered Species Act is already working to recover hundreds 
of species in the eastern and central United States, including the 
Indiana bat and Virginia big-eared bat, as well as birds, fish, 
turtles, and many other creatures that not only add to the richness and 
beauty of this part of the world, but also are vital to environmental 
health and ultimately the long-term social and economic well-being of 
our society. As with those other federally listed species, the rules 
protecting the northern long-eared bat will have built-in flexibility 
that allows sustainable and responsible development.
    Scientists estimate that bats provide billions of dollars in crop 
protection services across the United States. The insect-eating 
northern long-eared bat provides a valuable population check on moths 
and beetles that may attack timber and crops. Without this bat, the 
challenges farmers and the timber industry face will grow, not lessen. 
Because the northern long-eared bat is so depleted, it is important 
that we safeguard survivors from as much harm as possible, including 
harm to their critical habitat. Responsible environmental stewardship 
calls for this approach. That is what the Endangered Species Act is 
designed to promote, and for the majority of Americans, this is what 
they wish the Act to do--to protect for future generations the diverse 
and magnificent natural treasures of this Nation.
                          path to endangerment
    Since 2006, the northern long-eared bat (Myotis septentrionalis) 
has declined dramatically as a result of the exotic, invasive fungal 
disease known as white-nose syndrome (WNS). In the Northeast, where the 
disease has been present the longest, the species has plummeted 99 
percent.\2\ However, WNS is not the only threat the species faces. 
Scientists have evidence that the northern long-eared bat was in 
decline prior to the onset of WNS, possibly due to factors such as 
habitat destruction and fragmentation, environmental toxins, and 
climate change.\3\ Now, WNS may be interacting with these other dangers 
to cause a downward spiral that may soon become irreversible. For the 
perpetuation of the species it is vital that the scarce survivors are 
safeguarded from as many harms as possible. WNS has caused the sudden 
and dramatic shrinkage of the northern long-eared bat population, but 
it may well be these other factors, if left unaddressed and 
unmitigated, that could finish the species off. The northern long-eared 
bat is clearly in danger of extinction throughout all or a significant 
portion of its range, and as a matter of both law and responsible 
conservation policy, the FWS must designate the species as endangered.
---------------------------------------------------------------------------
    \2\ U.S. Fish and Wildlife Service. 2013. Proposed Rule: 12-Month 
Finding on a Petition to List the Eastern Small-Footed Bat and the 
Northern Long-Eared Bat as Endangered or Threatened Species; Listing 
the Northern Long-Eared Bat as an Endangered Species. Docket No. FWS-
R5-ES-2011-0024, 78 FR 61045. Oct. 2, 2013.
    \3\ Ingersoll, T.E., B.J. Sewall and S.K. Amelon. 2013. Improved 
analysis of long-term monitoring data demonstrates marked regional 
declines of bat populations in the eastern United States. PLoS ONE 
8(6): e65907. doi:10.1371/journal.pone.0065907.
---------------------------------------------------------------------------
    The Center for Biological Diversity submitted a citizen petition to 
list the eastern small-footed bat and the northern long-eared bat on 
January 21, 2010.\4\ On October 2, 2013, the U.S. Fish and Wildlife 
Service (FWS) proposed to list the northern long-eared bat (Myotis 
septentrionalis) as endangered.\5\ The FWS then decided earlier this 
summer, primarily in response to listing opponents, to extend the 
period for final determination another 6 months, to April 2, 2015.
---------------------------------------------------------------------------
    \4\ Center for Biological Diversity. 2010. Petition to list the 
eastern small-footed bat Myotis leibii and northern long-eared bat 
Myotis septentrionalis as threatened or endangered under the Endangered 
Species Act. 61 pp. http://www.biologicaldiversity.org/species/mammals/
eastern_small-footed_bat/pdfs/petition-Myotisleibii-
Myotisseptentrionalis.pdf.
    \5\ FWS, ibid.
---------------------------------------------------------------------------
        species' precipitous decline warrants endangered listing
    Populations of the northern long-eared bat have plummeted as a 
result of WNS. In the northeastern United States, where WNS has been 
present longest in North America, winter surveys demonstrate that the 
northern long-eared bat has declined by 99 percent. Summer surveys are 
generally in line with these findings. The Northeast is also the region 
in which the species was historically most abundant; a decline in that 
region has a disproportionately large impact on the species' overall 
status. No solution yet exists for WNS. So long as this is the case, 
the disease will likely spread and cause similar mortality among 
northern long-eared bats in other regions. Although the primary threat 
to the northern long-eared bat is WNS, it is an established biological 
principle that small populations of a species are more vulnerable to 
discrete threats than large populations are. For that reason, the 
severely reduced northern long-eared bat population is more at risk 
from other threats, including those from human activities, than prior 
to WNS.
    We take issue with the claims of those calling for FWS to list the 
northern long-eared bat as threatened rather than endangered. 
Population declines of more than 90 percent in the core of its range, 
with more declines predicted due to WNS, constitute a present ``danger 
of extinction throughout all or a significant portion of its range.'' 
The decreases do not represent a mere ``[likelihood] to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.'' In other words, for the northern 
long-eared bat, endangerment is not just a possibility on the horizon--
endangerment is already here.
             non-existent or inadequate protective measures
    No regulations or conservation plans currently exist that address 
the widespread and severe decline of the northern long-eared bat, and 
counter the various threats the species faces. The species is listed as 
state endangered or threatened in several states: ``endangered'' in 
Delaware, Massachusetts, and Vermont; ``threatened'' in Wisconsin; 
proposed for endangered in Maine. However, it has no protected status 
or only minimal recognition as a vulnerable species in many more states 
within its range. Unfortunately, none of the state listings provide 
strong regulatory protection against threats such as destruction of 
forested roosting habitat that, together with WNS, could lead to the 
extinction of the species. State-level protections also do not provide 
range-wide recovery planning, habitat conservation plans for activities 
that may take listed bats, or Federal funding for research and 
management.
    Unfortunately, some state natural resource agencies in the upper 
Midwest have expressed opposition to the needed Federal protection of 
northern long-eared bats.\6\ Directors of Minnesota, Wisconsin, 
Michigan and Indiana natural resource agencies requested in an April 
2014 letter to FWS that the agency delay protection of the northern 
long-eared bat because of the potential impact on timber operations and 
private landowners. Yet, none of these states have their own programs 
to conserve and recover the species that are equivalent to the 
protections provided by Federal ESA listing.
---------------------------------------------------------------------------
    \6\ http://www.jsonline.com/news/wisconsin/states-raise-concerns-
about-bat-protection-plan-b99253534z1-256378541.html.
---------------------------------------------------------------------------
   wns continues to spread and northern long-eared bat continues to 
                                decline
    The U.S. Geological Survey/National Wildlife Health Center reported 
this April \7\ that WNS spread to three new states--Arkansas, Michigan, 
and Wisconsin--in the winter of 2013-14. The disease also continued to 
spread within the states where it had been previously documented, 
intensifying its impact in the Midwest, Southeast, and South. In 
Canada, the disease spread last winter within Nova Scotia, New 
Brunswick, Quebec and Ontario. The extent of the disease now reaches 
from the 49th parallel in Quebec south to Paulding County, Georgia, and 
from Prince Edward Island west almost to the Missouri/Kansas border.
---------------------------------------------------------------------------
    \7\ http://www.nwhc.usgs.gov/publications/
wildlife_health_bulletins/WHB_2014-04_WNS_ Updates.pdf.

    The following information was reported at the 2014 Northeast Bat 
Working Group \8\ annual meeting in January:
---------------------------------------------------------------------------
    \8\ http://www.nebwg.org/AnnualMeetings/2014/index.html.

     In summer mist net surveys in New York, northern long-
            eared bats have notably declined over the last several 
            years. Acoustic surveys show a dramatic decline of all 
---------------------------------------------------------------------------
            Myotis species, which include the northern long-eared bat.

     In Pennsylvania, numbers of bats at summer roosts are 
            down, as are numbers of bats at hibernacula. The northern 
            long-eared bat was down by 99.2 percent in hibernacula 
            surveys in 2013, as compared to pre-WNS counts. The number 
            of contractor-conducted net surveys has grown dramatically 
            from 390 in 2006 to 1,087 in 2012, yet the capture rate of 
            northern long-eared bats relative to its pre-WNS numbers 
            has continued to go down.

     In Virginia, the number of northern long-eared bats caught 
            during summer mist net surveys has gone down by 96 percent 
            compared to pre-WNS surveys.

     In West Virginia, the northern long-eared bat was the most 
            common bat species found in summer mist net surveys prior 
            to WNS (33 percent). However, now only 20 percent of the 
            bats captured are northern long-eared bats. (The report did 
            not indicate whether total number of all bats captured has 
            also declined, but this seems likely).

    A recent paper on pre- and post-WNS bat activity on the Fernow 
Experimental Forest in West Virginia reports: ``Activity of little 
brown myotis, northern myotis, and Indiana myotis was lower post-WNS 
than pre-WNS, consistent with the species' precipitous declines 
previously reported in WNS-affected areas in the Northeast and upper 
portions of the Mid-Atlantic.'' \9\ This study was based on summer 
acoustic surveys.
---------------------------------------------------------------------------
    \9\ Johnson et al. 2013. Nightly and yearly bat activity before and 
after WNS on the Fernow Experimental Forest in West Virginia.
---------------------------------------------------------------------------
    Some opponents of endangered species listing have asserted that 
recent summer bat surveys, unlike hibernacula surveys, indicate that 
the northern long-eared bat is still abundant. However, publicly 
available data such as studies and surveys cited above paint a clear 
picture of ongoing and dramatic decline of the species.
         scientific uncertainty and the best available science
    The best, currently available science went into the FWS' 
recommendation to list the northern long-eared bat as endangered, and 
that decision was peer-reviewed and supported by leading bat 
scientists. There is no genuine scientific uncertainty about whether 
this bat is in danger of extinction in all or a significant part of its 
range. To the extent that incomplete information about the species, 
white-nose syndrome, and other threats still exists, this is a reality 
of the scientific process. A listing decision cannot wait until 
complete scientific research has been done and no amount of uncertainty 
remains. To delay such a decision while threats are ongoing, as they 
are for the northern long-eared bat, would be ecologically and fiscally 
irresponsible because the status of the species would likely worsen in 
the meantime, and require even more aggressive, potentially expensive, 
action down the line to save it from extinction.
                   the need for addressing all harms
    White-nose syndrome is the primary threat to the northern long-
eared bat. However, it is not the only threat. A small population is 
vulnerable to losses of any kind, from any source. Forest clearing and 
fragmentation, human disturbance of caves, and environmental toxins, 
among others, are other threats to the northern long-eared bat that 
need to be addressed if conservation and recovery efforts are to be 
effective. Just as a cancer patient would be ill-advised to stop 
wearing her seat belt, just because the major threat to her health is 
cancer, so too must biologists be able to address potential and likely 
harms to the northern long-eared bat, from other sources besides white-
nose syndrome.
                               conclusion
    The northern long-eared bat is in current danger of extinction 
throughout a significant portion of its range. Based on the current, 
best available scientific information, it qualifies for endangered 
status under the Endangered Species Act, and it is in need of that 
level of Federal protection to address the profound and various threats 
it faces. The Act is a tool that works, a policy that the American 
public supports, and in its success at preventing extinction, it is a 
gift that we bestow upon future generations.

                                 ______
                                 

    The Chairman. Thank you very much for your testimony.
    Now recognize Mr. Martin Melville, Owner of Melville 
Forestry Services. And, Mr. Melville, you are recognized for 5 
minutes.

    STATEMENT OF MARTIN MELVILLE, OWNER, MELVILLE FORESTRY 
              SERVICES, CENTRE HALL, PENNSYLVANIA

    Mr. Melville. Thank you very--I am going to move this thing 
closer here. So I was perhaps not as clear on my purpose for 
being here. I will say that given the pattern of ESA 
implementation by Fish and Wildlife Service, it is likely that 
a listing on such a broad scale as the Northern Long-Eared Bat 
would significantly impact, perhaps disastrously, as in the 
Northwest, my business, my logging and my peers.
    I would say that in the reading that I have done in 
preparation for this, there is not any indication that ceasing 
forest management activities would benefit the bat. It appears 
that the bat is a generalist, and really actually kind of does 
pretty well when you give it a variety of habitats.
    What I heard this morning though is more, so the ESA is 40 
years old and it should be updated. And there are some 
important parts of it that just really don't seem to work. One 
of those was mentioned by our friend from Ford City who 
mentioned his inability to build a school. There is a clause in 
there somewhere about suitable habitat, and at one SFI 
workshop, I asked the facilitator if it was suitable habitat 
for a dinosaur, if that was meant that they were protected 
there and I couldn't do any work there, and he said, no, that 
doesn't apply because they are extinct. But the way that it was 
worded, it made it sound very clearly like if it was suitable 
habitat, it didn't matter if the animal hadn't been seen there 
for hundreds of years, it is still restricted activity.
    I see mission creep, I think, although I am not an expert 
in ESA, certainly.
    I was talking with a friend of mine this morning who is a 
log truck driver, and, you know, we live here, our office is 
out there, and we have lunch under a tree, and logging is as 
much a way of life as it is a mode of employment. And I mean I 
think it would not be too far-fetched to suggest that perhaps 
loggers should be listed at times.
    There are some important considerations, and, for loggers 
themselves, we are now, whether we like it or not, members of a 
global economy and we must compete on that level. And so our 
opportunity to raise our prices to help meet our costs is 
virtually nonexistent. We are in competition with hybrid 
markets from Eastern Europe and Russia, and now from South 
America as well. Capital costs keep going up. Employees are 
harder and harder to find. And a recent logging survey showed 
that more than 70 percent of the loggers nationwide, but there 
would be no reason to doubt that the numbers are similar for 
Pennsylvania, were operating at a 3 percent or less margin of 
profit. And needless to say, that in itself is not a 
sustainable arrangement. So adding another burden to this heap 
for something that will arguably not help to benefit the bat 
strikes me as sort of arcane or bizarre.
    Thank you, friends.
    [The prepared statement of Mr. Melville follows:]
    Prepared Statement of Martin Melville, Centre Hall, Pennsylvania
    Chairman Hastings and distinguished members of the House Natural 
Resources Committee, my name is Martin Melville. I am a resident of 
Centre Hall, Pennsylvania, received a Bachelor of Science in Forestry 
in 1980, and have worked in the forest industry for the past 35 years; 
20 years logging and 10 years as proprietor of Melville Forest 
Services. I was presented the Pennsylvania ``Outstanding Logger Award'' 
in 1997 and met the criteria of the Sustainable Forestry Initiative 
' program Master Logger in 2004.
    I also appear today on behalf of the members of the American 
Loggers Council, a national organization representing professional 
timber harvesters in 30 States across the United States with whom I 
have had an affiliation with for the past several years. I am pleased 
to have the opportunity to address the committee on the potential 
impacts that could occur should the U.S. Fish and Wildlife Service 
(USFWS) list the Northern Long-Eared Bat as a Federal Endangered 
Species, but first I would like to throw out a few statistics for you.
    The latest numbers that I have been able to gather are from 2012, 
taken directly from the American Forest and Paper Association Web site. 
For Pennsylvania they are:

        Pennsylvania employment numbers in the forest products 
        industry--50,103

        Payroll--$2,622,276

        With an estimated 274 manufacturing facilities ranging from 
        mill work, treating plants, sawmills and paper mills, the total 
        value of industry shipments in 2012 was $14,815,029,000.00 with 
        state and local tax payments of $179,000,000.00.

        Forests compose 16,577,000 acres in Pennsylvania, covering 57 
        percent of the state. Of that 16.6 million acres, 11.6 million 
        are privately held.

    As you know, the Northern Long-Eared Bat is experiencing 
significant declines in parts of its range due to White Nose Syndrome 
(WNS). In its proposed listing, the USFWS has affirmed that WNS is the 
most significant threat to the NLEB and the species would most likely 
not be imperiled if not for this ``disease'' and that ``habitat 
concerns and other anthropogenic factors create no significant effects 
alone or in combination.'' 78 Fed. Reg. at 61072 (emphasis added). 
USFWS also asserts in its document that when combined with significant 
population reductions due to WNS, ``the resulting cumulative effect may 
further adversely impact the species''; the only real threat to the 
species is clearly a wildlife disease, not habitat modification or 
loss.
    There is no evidence I am aware of indicating timber harvest 
restrictions will improve the NLEB's chances of surviving the WNS which 
is leading to the population decline, yet the Interim Conference and 
Planning Guidelines issued by the FWS in January of this year suggest a 
completely unrealistic, and in my view, unnecessary set of constraints 
on forest management during nearly every seasonal period of bat habitat 
use. These restrictions include vaguely worded restrictions on 
prescribed burning at various times of the year, restrictions on tree 
harvesting of all trees larger than 3 inches DBH and larger, and 
ambiguous direction to ``Avoid reducing the suitability of forest 
patches with known NLEB use.'' In essence, although the species has 
been shown to be present in forest with a variety of age classes, 
management regimes, and in fact may depend upon management to 
perpetuate various habitat features over time, the Guidance seems to 
suggest that creating 5-mile radius ``no management'' zones around 
known habitat as the best way to conserve bats.
    There is no evidence to suggest these measures have anything to do 
with the spread of White Nose Syndrome, nor that they would do anything 
to prevent very high levels of mortality should WNS spread throughout 
the bat's range, as the USFWS speculates it will.
    I would argue current forest practices greatly enhance roosting and 
rearing habitat. In fact it may be true leaving dead snags and trees 
spaced apart from one another, such as those associated with logging, 
may separate the NLEB preventing incidental contact which spreads WNS.
    This is supported by the fact where WNS is not yet present; 
populations of NLEB appear to be quite robust. For instance, the NLEB 
is one of the most frequently captured bats in the mist net surveys on 
the Black Hills National Forest in South Dakota, one of the most 
heavily managed National Forests in the country. In fact it is my 
understanding prior to the introduction of WNS, NLEB's were regarded as 
``most common'' in the Northeastern portion of their range. States 
ranging from Northern New England through the lower portion of the Lake 
States and Indiana contain a variety of habitat types, forest 
ownerships, and land use practices. This strongly suggests the bat is 
not dependent on a particular type of habitat much less a particular 
class of trees.
    While UFWS may not take economics into consideration when making 
decisions, it should recognize the fact it takes dollars generated from 
tax paying businesses to have a clean stable environment both socially 
and ecologically. The forest products industry is one of the largest 
industries in the state of Pennsylvania generating over 14 billion 
dollars to our state economy.
    As a logger, and part of the forest products industry here in 
Pennsylvania, I am committed to continuing forestry practices that 
enhance NLEB habitat. Any premature listing of an endangered species, 
or listing without taking into account economic considerations to the 
state, could have a negative impact to Pennsylvania's Forest Products 
Industry, including timberland owners and loggers as well as a 
significant impact to our state's economy.
    Rural forest dependent communities are still reeling in the 
aftermath of the great recession. While housing starts have improved, 
they have yet to return to pre-recession levels, and I and those in our 
industry that I represent are still struggling.
    Over the past several years, I estimate that we have lost 
approximately 30 percent of our logging capacity due primarily to the 
downturn in the housing markets and the curtailing of mills producing 
solid wood products for that market. We are just now beginning to see 
some improvement in those markets, but to propose an Endangered Species 
listing that is based on a disease rather than loss of habitat, that 
would restrict my ability to manage and harvest timber could spell 
disaster for my family owned business.
    I strongly recommend the emphasis on Northern Long-Eared Bat 
protection be focused on stopping the spread of White Nose Syndrome and 
not destroying well managed forests or the communities with an ESA 
listing that will have no impact on the viability of the species.
    Thank you for the opportunity to testify and I would be happy to 
try and answer any questions that you might have.

                                 ______
                                 

    The Chairman. Thank you very much for your testimony.
    I now recognize Mr. Paul Lyskava, Executive Director of the 
Pennsylvania Forest Association. You are recognized for--
Lyskava. Lyskava, is that how you----
    Mr. Lyskava. That is correct, yes.
    The Chairman. So I blew up the first time, but I recovered 
quickly.
    Mr. Lyskava. That is OK, Mr. Chairman, members of my family 
do the same.
    The Chairman. Well, I feel better about that then.

  STATEMENT OF PAUL LYSKAVA, EXECUTIVE DIRECTOR, PENNSYLVANIA 
     FOREST PRODUCTS ASSOCIATION, HARRISBURG, PENNSYLVANIA

    Mr. Lyskava. Mr. Chairman, I would like to welcome the 
committee to Pennsylvania, which leads the Nation in the 
production of hardwood lumber. We are proud that Pennsylvania 
hardwoods are valued across the Nation and around the world as 
a renewable and sustainably managed resource of high quality 
and beauty. With over 17 million acres of forest, Pennsylvania 
leads the Nation in the volume of hardwood growing stock.
    The decline of the Northern Long-Eared Bat and other cave-
dwelling bat species due to the spread of White Nose Syndrome 
is an issue that should be of concern to all. Our organization 
supports public and private research efforts to learn more 
about White Nose Syndrome, and the efforts of Federal and state 
agencies to restrict recreational access to certain caves to 
prevent the unintentional spread of White Nose Syndrome by man.
    We are also taking steps within our organization to educate 
the state's forestry and logging community on bats and White 
Nose Syndrome through training offered by our sister 
organization, the Pennsylvania Sustainable Forestry Initiative. 
We commend the U.S. Fish and Wildlife Service for its decision 
to provide a 6-month extension before its final listing 
determination, but we believe that this extension still does 
not provide sufficient time to address the existing gaps and 
conflicting data on Northern Long-Eared Bat populations and 
survivability. Until these gaps and conflicts are addressed, we 
believe that it is premature for the U.S. Fish and Wildlife 
Service to list Northern Long-Eared Bat as endangered.
    I would also like to stress, as the other speakers have, 
that the most significant threat to the Northern Long-Eared Bat 
comes from the White Nose Syndrome Disease, not from lack of 
habitat. The U.S. Fish and Wildlife Service, as others have 
stated, has gone as far as to state that habitat concerns and 
other anthropologic factors create no significant negative 
effects to Northern Long-Eared Bat, alone or in combination. 
Timber harvesting and other forestry activities are not causing 
a decline in the Northern Long-Eared Bat, nor are these 
activities associated with White Nose Syndrome.
    If Northern Long-Eared Bat is listed as endangered, the 
U.S. Fish and Wildlife Service will likely adopt an extensive 
set of restrictions on forestry activities and other tree 
removal activities. This is because the Endangered Species Act 
currently requires the Agency to maintain a focus on habitat 
preservation, even if habitat issues are not causing the risk 
to the species, as is in the case with Northern Long-Eared Bat.
    The current Endangered Species Act is poorly suited at 
helping a species which is suffering due to a wildlife disease. 
As others have stated, the habitat provisions will likely 
include establishing protection zones around hibernacula, 
establishing seasonal tree harvesting restrictions during the 
summer. In Pennsylvania, these seasonal restrictions could 
possibly run from as long as April 1 to November 15. All trees 
3 inches diameter, breast height and larger, would be covered 
under these harvesting restrictions. There would also be 
additional restrictions on other non-harvesting forestry 
activities such as proscribed burning. Because the Northern 
Long-Eared Bat is a forest generalist, as my colleague just 
stated a few moments ago, and was prevalent--and is prevalent 
in Pennsylvania pre-White Nose Syndrome, the amount of acreage 
in the state impacted by the restrictions will be significant. 
As a forest generalist, Mr. Chairman, we mean that the Northern 
Long-Eared Bat, during the summer, can roost in a wide variety 
of species--big trees, small trees, living trees, dead trees; 
in a wide variety of forest types--types of forest landscapes. 
Because of this, the data recently developed by the 
Pennsylvania Game Commission and Pennsylvania Bureau of 
Forestry indicates that as much as 54 percent of Pennsylvania 
or 15.8 million acres provides a moderate to high potential 
summer habitat use for Northern Long-Eared Bat. This accounts 
for much of the forested acres within the state. This also 
includes about 88 percent of state forest land, and 84 percent 
of state game lands. Additionally, Pennsylvania has 114 known 
hibernacula which house Northern Long-Eared Bat. As a result, 
as much as 20 percent of the state could be subject to the 
additional restrictions applied to--according to the 
anticipated hibernacula protection zones.
    Mr. Chairman, if implemented, these various forestry 
restrictions across such a wide swath of Pennsylvania will 
basically decimate the state's forest products industry. 
Logging would essentially become a part-time activity across 
much of the state. Local supply chains that provide logs to 
sawmills, paper mills and other forest products manufacturers 
will be disrupted, and it is difficult to conceive a scenario 
where larger production facilities will be able to continue to 
sustain their operations under such a restricted supply of 
logs. Hundreds of operations will close, with the loss of tens 
of thousands of jobs.
    What is at risk? Currently, Pennsylvania is home to more 
than 2,200 forest product establishments, employing 
approximately 60,000 Pennsylvanians. The listing of the 
Northern Long-Eared Bat will also impact an estimated 533,000 
private forest landowners. These folks hold over 70 percent of 
the forested acres in the state.
    From Pennsylvania forest products alone, the effect of the 
Northern Long-Eared Bat will have a significant negative impact 
on Pennsylvania's economy. In 2012, the state's wood industry 
had over $11 billion in sales, and an overall economic impact 
to the state of $19 billion a year. And we are just one of the 
states where forestry will be negatively impacted by the 
Northern Long-Eared Bat listing. According to the National 
Alliance of Forest Owners, 27 of the 38 states touched by the 
Northern Long-Eared Bat range have a sizable forest products 
industry presence. These states contain a total of more than 
372 million acres of public and private timber land. The 
industry provides a total of 2.2 million direct, indirect and 
induced jobs, with a combined payroll of over $80 billion. 
Annual timber sales and manufacturing shipments equate to over 
$210 billion, with a combined contribution to the gross 
domestic products of those states of over $89 billion.
    With that, sir, I will wrap up my testimony, and look 
forward to additional questions. Thank you.
    [The prepared statement of Mr. Lyskava follows:]
 Prepared Statement of Paul Lyskava, Executive Director, Pennsylvania 
                      Forest Products Association
    We thank the committee for the opportunity to comment on the 
decline of the Northern Long-eared Bat (NLEB) and the consideration of 
the species for listing as endangered under the Federal Endangered 
Species Act.
    We also welcome the committee to Pennsylvania, which leads the 
Nation in the production of hardwood lumber. Pennsylvania hardwoods are 
valued across the Nation and around the world as a renewable and 
sustainably managed resource of high quality and beauty. With 17 
million acres of forest, Pennsylvania leads the Nation in the volume of 
hardwood growing stock.
    The decline of NLEB and other cave dwelling bat species due to the 
spread of white nose syndrome disease (WNS) is an issue that should be 
of concern for all. PFPA supports public and private research efforts 
to learn more about the impacts of WNS on NLEB and other bat species, 
and ultimately how to control, mitigate or eliminate WNS as a threat to 
bats. PFPA also supports the efforts of Federal and state agencies to 
restrict recreational access to critical bat hibernacula at this time 
to prevent the unintentional spread of WNS.
    We are also taking steps to educate the state's forestry and 
logging community on bats and WNS through training offered by our 
sister organization, the Pennsylvania Sustainable Forestry Initiative 
'.
    We commend the U.S. Fish and Wildlife Service (USFWS) for its 
decision to provide a 6-month extension before its final listing 
determination and the re-opening of the comment period this summer. But 
we believe that this extension still does not provide sufficient time 
to address the existing gaps and conflicting data on NLEB populations 
and survivability.
    It seems that the evidence for the proposed listing of the species 
as endangered is based primarily upon significant mortality events 
documented at a limited number of hibernacula. While these events are 
dramatic, it has been documented that NLEB populations remain robust in 
portions of the species range, including midwestern and northern states 
where WNS is not yet documented. The USFWS and others have also 
recognized that NLEB is difficult to accurately count via cave surveys, 
given its preference to hibernate singularly and in small groups in 
recessed areas such as cracks, crevices and broken stalactites. 
Finally, there seems to be a consensus acknowledgment that the NLEB 
also hibernates in rock outcroppings in Pennsylvania and other areas, 
although these populations are not currently being considered.
    Additionally, while the USFWS has cited NLEB mortality of as much 
as 99 percent at these hibernaculum die-offs, other research has 
suggested that NLEB population declines in Pennsylvania and nearby 
states may be as low as 31 percent.
    Until these data gaps and conflicts are addressed, we believe that 
it is premature for the USFWS to list NLEB as endangered.
    We would like to stress that the most significant threat to the 
NLEB comes from the WNS disease, not a lack of habitat. This fact is 
recognized by the USFWS and many environmental interests. The USFWS has 
gone as far as to state that habitat concerns and other anthropogenic 
factors create no significant negative effects to NLEB alone or in 
combination. Timber harvesting and other forestry activities are not 
causing a decline in NLEB, nor are these activities associated with 
WNS. As further evidence, the proliferation of WNS and reported decline 
of NLEB in Pennsylvania has occurred during a period of historically 
low timber harvesting in the state.
    We thank the committee for gathering information on the economic 
impacts associated with a Federal endangered listing of the NLEB. As 
you know, the USFWS will not consider economic or human impacts in its 
determination whether to list a species as threatened or endangered.
    If NLEB is listed as a federally endangered species, it will be 
illegal to kill, harm or harass a NLEB, even if unintentional. The 
definition of `take' under the Endangered Species Act includes habitat 
impacts that could be an impediment to the essential behavior of the 
species, such as roosting or reproduction.
    If NLEB is listed as endangered, the most likely USFWS management 
protocols, based upon the USFWS Interim Guidance document published in 
January 2014, will be an extensive set of restrictions on forestry 
activities and other tree removals. This includes establishing 5-mile 
protection zones around known hibernacula and establishing seasonal 
tree harvesting restrictions on bats summer habitat. In Pennsylvania, 
these seasonal restrictions could possibly run from April 1 to November 
15. All trees 3" DBH and larger would be covered by these harvesting 
restrictions. There would also likely be additional restrictions on 
other non-harvesting forestry activities, such as prescribed burning.
    The NLEB is a forest generalist during the summer, utilizing a wide 
variety of forest age classes, tree species, tree sizes, living and 
dead trees, as well as various man-made structures. For this reason and 
the frequency of its occurrence pre-WNS, the amount of acreage in 
Pennsylvania impacted by these restrictions will be significant. Data 
recently developed for the Pennsylvania Game Commission and 
Pennsylvania Bureau of Forestry indicates that 54 percent of 
Pennsylvania (15.8 million acres) provides moderate to high potential 
summer use habitat for the NLEB, which accounts for much of the 
forested acres in the state. This includes 88 percent of State Forests 
and 84 percent of State Game Lands.
    Pennsylvania has 114 hibernacula known to house NLEB. As a result, 
as much as 20 percent of the state could be subject to the additional 
restrictions applied to the anticipated hibernacula protection zones.
    If implemented, these various forestry restrictions across such a 
wide swath of Pennsylvania will decimate the state's forest products 
industry.
    During the fraction of the year that forestry will be unimpeded by 
these NLEB restrictions, Pennsylvania's forestry community is already 
subject to a variety of mandated, encouraged and voluntary restrictions 
on timber harvesting activities. This includes hunting seasons; forest 
roads closed or with plowing restrictions during winter to support 
snowmobile activities; best practices that encourage minimizing the 
transport of logs during the spring freeze/thaw period when paved roads 
are most susceptible to damage; and periods in the spring when it is 
too wet to log.
    As a result, logging would essentially become a part-time activity 
across much of Pennsylvania, unencumbered for only a fraction of the 
year. The owners and employees of these logging companies will not be 
able to continue their operations in this fashion. The local supply 
chain that provides logs to sawmills, paper mills and other forest 
product manufacturers will be disrupted. It is difficult to conceive of 
a scenario where larger production facilities will be able to sustain 
operations under such a restricted supply of logs.
    Even secondary forest product manufacturers of products such as 
cabinets, flooring, millwork, and pallets will come to find 
Pennsylvania as an uncompetitive place to base operations, as the local 
supply of hardwood lumber dries up when the sawmills close.
    Currently, Pennsylvania is home to more than 2,200 forest product 
establishments, employing approximately 60,000 Pennsylvanians. This is 
about 10 percent of the state's manufacturing workforce. The forest 
product industry has a presence in every county of the Commonwealth.
    The listing of the NLEB as an endangered species and implementation 
of the suggested forestry restrictions will result in the loss of tens 
of thousands of these jobs and the closing of hundreds of businesses.
    Most of the jobs lost will be in forestry, logging and 
manufacturing, paying middle class wages and above. Most establishments 
that will be forced to close will be owned by hardworking individual 
entrepreneurs and families, some of which have been in the forest 
product business for generations.
    The listing of NLEB as endangered will impact forest landowners as 
well. Pennsylvania contains nearly 17 million acres of forest. Nearly 
30 percent of this acreage (4.8 million acres) is publically owned. An 
estimated 533,000 private owners hold over 70 percent of the forested 
acres (11.7 million acres) in Pennsylvania. Families and individuals 
are the dominant group in this private category, accounting for 54 
percent (9.6 million acres) of forest in Pennsylvania. The listing of 
NLEB and associated restrictions will impede public and private 
landowners from their desired and necessary forestry practices. 
Furthermore, a collapse of the state's forest products industry will 
lower the demand for logs, decreasing the value of timber on both 
public and private lands. Any disincentive to maintain lands as working 
forests provides an incentive for this land to be permanently converted 
to non-forest uses.
    From forestry and forest products alone, the effect of the NLEB 
listing will have a significant negative impact on Pennsylvania's 
economy. In 2012, the state's wood industry had $11.5 billion in sales 
and an overall total economic impact of $19 billion contributed to the 
state's economy. This included total direct, indirect and induced 
employment of over 98,000 individuals, with $5.0 billion in wages and 
salaries earned. The anticipated loss of forest product business and 
jobs will significantly impact these figures. Local impacts will be 
even more dramatic in the communities where forestry and forest 
products are the leading employer.
    Pennsylvania is just one of many states where forestry will be 
negatively impacted by an NLEB listing. According to the National 
Alliance of Forest Owners, 27 of the 38 states touched by the NLEB 
range have a sizable forest products industry presence. These states 
contain a total of 372,535,969 acres of public and private timberland. 
The industry provides a total of 2.2 million direct, indirect, and 
induced jobs with a combined payroll of $80 billion. Annual timber 
sales and manufacturing shipments equaled $210.7 billion, with a 
combined contribution to state GDPs of $89 billion.
    The negative impacts of a NLEB listing are not only economic. The 
associated forestry restrictions will create a significant impediment 
to public and private forest owners seeking to improve the forest 
habitat for other species, including other listed species and other bat 
species being negatively impacted by WNS.
    In Pennsylvania, for example, the state's Game Commission and 
Department of Conservation and Natural Resources are working on a 
habitat conservation plan that will improve forest habitat for the 
benefit of the endangered Indiana Bat. The forest management 
restrictions suggested for a NLEB listing may make this plan 
unfeasible.
    The restrictions will also create an obstacle for landowners to 
engage in needed forest management practices to maintain forest health 
and address the impacts of forest diseases and invasive pests. A 
endangered listing of NLEB will lead to a general decline in the health 
of Pennsylvania's forests.
    In conclusion, the habitat protection provisions associated with an 
endangered listing of the NLEB will have dramatic negative consequences 
for Pennsylvania's forestry industry, its forest landowners, the 
state's economy and the forest habitat itself--all while providing no 
benefit to addressing the impact of WNS that threatens the NLEB.
    The USFWS needs to forego any mandated restrictions on forest 
management practices. The USFWS needs to work with other Federal 
agencies, state wildlife and forestry agencies and other stakeholder to 
fill the gaps in the existing data and understanding of NLEB and WNS. 
Finally, the USFWS and others need to remain focused on the research 
and efforts on the control and elimination of the WNS that is the 
actual threat to NLEB and other bat species.

    Thank you again for this opportunity to comment on this important 
matter.

Attachments:

    PFPA Comments: Docket No. FWS-R5-ES-2011-0024 (August 29, 2014).

    Consensus Forest Industry Comments: Docket No. FWS-R5-ES-2011-0024 
(August 29, 2014).

    PFPA Comments: Docket No. FWS-R5-ES-2011-0024 (January 2, 2014).

                              ATTACHMENT 1

          Pennsylvania Forest Products Association,
                                            Harrisburg, PA,
                                                   August 29, 2014.

Docket No. FWS-R5-ES-2011-0024

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

Re: Final Determination on the Proposed Endangered Status for the 
        Northern Long-Eared Bat, 78 Fed. Reg. 61046 (October 2, 2013)--
        [Docket No. FWS-R5-ES-2011-0024]

    Dear USFWS:

    The Pennsylvania Forest Products Association (PFPA) offers the 
following comments related to the above referenced proposal to list the 
northern long-eared bat (Myotis septentrionalis) as an endangered 
species. We thank the USFWS for its six-month extension for the final 
listing determination and the re-opening of the comment period.
    The following comments supplement our previous comments submitted 
on January 2, 2014, and the consensus comments submitted by coalition 
of forestry and forest product organizations (including PFPA) dated 
August 29, 2014.
About PFPA:
    The Pennsylvania Forest Products Association (PFPA) is the leading 
trade group in the state representing the various sectors of the forest 
products industry. PFPA's membership accounts for approximately three-
quarters of the state's hardwood lumber production, as well as many of 
the leading pulp and fiber utilizing manufacturing facilities in the 
state. PFPA's members also own or manage more than one million acres of 
private forest in Pennsylvania.
    PFPA is also the administrative host and sponsor of the 
Pennsylvania Sustainable Forestry Initiative' (PA 
SFI') , which has provided safety, environmental and 
ecological training to more than 7,000 loggers, foresters and others. 
It is the leading logger training program in the state. PA 
SFI' regularly includes courses related to wildlife, habitat 
and biodiversity issues as part of its continuing education 
opportunities.
    We offer the following additional comments on this issue and 
respond to the USFWS request for additional information.
NLEB Population and Species Decline:
    We share the concern about the decline of northern long-eared bat 
(NLEB) as a result of white nose syndrome (WNS). It seems that the 
evidence for the proposed listing of the species as endangered is based 
primarily upon significant mortality events documented at a limited 
number hibernaculum. While these events are horrific, the overall 
science on NLEB populations and survivability currently contains both 
gaps and conflicting data.

     It has been documented that NLEB populations remain robust 
            in portions of the species range, including midwestern and 
            northern states where WNS is not yet documented. Even in 
            Pennsylvania, the Pennsylvania Game Commission has said 
            that NLEB is still commonly found in parts of the state.

     The USFWS and others have recognized that NLEB is 
            difficult to accurately count via cave surveys, given its 
            preference to hibernate singularly and in small groups in 
            recessed areas such as cracks, crevices and broken 
            stalactites. As a result, there is a probability that 
            actual NLEB populations in identified hibernacula are being 
            under-reported. If so, the NLEB mortality rates at 
            documented die-off events could be over-estimated, perhaps 
            by a significant amount.

     While the USFWS has cited NLEB mortality of as much as 99 
            percent at these hibernaculum die-offs, other research has 
            suggested that NLEB population declines in Pennsylvania and 
            nearby states may be only 31 percent. (http://
            www.nrs.fs.fed.us/pubs/jrnl/2013/
            nrs_2013_ingersoll_001.pdf) While still significant, this 
            rate of decline may not foretell the imminent demise of the 
            species.

     There seems to be a consensus acknowledgment that the NLEB 
            also hibernates in rock outcroppings. Numerous occurrences 
            of NLEB in Pennsylvania where rock outcroppings are common 
            suggest that rock outcroppings may be a significant 
            undocumented resource for NLEB in Pennsylvania.

    Additionally, we believe that certain characteristics of the 
ecology of the NLEB may suggest greater potential for species 
survivability than implied by reported mortality rates in the proposed 
listing. In comparison to other bats species impacted by WNS, NLEB 
tends to winter singularly and in small groups, segregated in the 
cracks and crevices of hibernacula (as opposed to other species that 
cluster in larger groups). Compared to the federally listed Indiana 
Bat, NLEB has been documented in significantly more hibernacula (114 vs 
18 documented sites). As stated above, it is likely that there are 
significant undocumented populations wintering as individuals and small 
groups in remote rock outcroppings. Finally, the NLEB seems to 
congregate in smaller numbers during maternity and summer roosting. All 
of these factors combined would suggest the possibility that the spread 
of WNS could be slower within the NLEB population, compared to other 
bat species, benefiting the survivability. Research on this issue is 
needed.
    In summary, we recognize the impact that WNS is having on NLEB. We 
believe, however, that there are still significant conflicts and gaps 
in the research to suggest that the species may not be at the brink of 
extinction. These research gaps need to be better addressed before an 
endangered listing is warranted.
NLEB Habitat:
    As was emphasized in our previous comments and in the comments of 
countless others, the most significant threat to the NLEB comes from 
the WNS disease, not a lack of habitat. The USFWS recognizes this and 
has gone as far as to state that habitat concerns and other 
anthropogenic factors create no significant negative effects to NLEB 
alone or in combination.
    Furthermore, existing research and the wide diversity of habitat 
within the NLEB range suggests that the species is not dependent upon 
any particular type of forest habitat. For its summer roosting needs, 
NLEB seems to be adaptive to a wide variety of forest age classes, tree 
species, tree sizes, living and dead trees, as well as various man-made 
structures. NLEB has not been adversely impacted by forest habitat 
changes resulting from forest management activities.
    Because NLEB is such a forest generalist, data recently developed 
for the Pennsylvania Game Commission and Pennsylvania Bureau of 
Forestry indicates that 54 percent of Pennsylvania (15.8 million acres) 
provides moderate to high potential use habitat for the NLEB in the 
summer. We suspect that other states in the NLEB range also have 
expansive areas of potential use habitat for the NLEB in the summer.
    For this reason, we continue to urge the USFWS to forego the 
designation of any forested areas as critical habitat, as no specific 
area within its range is critical to its future survival, save for 
hibernacula that are currently free from WNS.
    We are distressed that the USFWS continues to seek to address the 
decline of NLEB by focusing on seasonal restrictions to forest 
management practices, as expressed in the Interim Guidance issued in 
January. These restrictions for timber harvesting, prescribed burning 
and other forest management practices throughout much of the year will 
do nothing to prevent the spread of WNS or protect NLEB from WNS. Such 
restrictions will, however, have a negative impact on efforts by public 
and private forest owners to improve the forest habitat for other 
species, including other listed species and other bat species being 
negatively impacted by WNS. In Pennsylvania, for example, the Game 
Commission and Bureau of Forestry are working on a habitat conservation 
plan that will benefit the endangered Indiana Bat. The forest 
management restrictions suggested for a NLEB listing may make this plan 
unfeasible.
Ongoing Bat Conservation Efforts:
    Recognizing the impacts that WNS is having on local bat 
populations, the Pennsylvania Sustainable Forestry 
Initiative' is offering a course entitled Bats and Forest 
Management as part of its logger training continuing education program. 
Taught by Pennsylvania Bureau of Forestry wildlife specialists, the 
course covers the importance Pennsylvania bat species, their habitat 
requirements, WNS, current regulations and additional steps that 
individuals can take to minimize potential impacts on bats during a 
timber harvest. We estimate that more than 700 harvesters and foresters 
will have an opportunity to take this course as it is offered during 
the upcoming years.
    PFPA also continues to support public and private research efforts 
to learn more about the NLEB and for the control and elimination of the 
WNS that is the actual threat to NLEB and other bat species.
Potential Economic and Human Impact:
    We recognize that the USFWS will not consider economic or human 
impacts in its determination whether to list NLEB under the Endangered 
Species Act. However, we feel obligated to provide such information as 
it relates to Pennsylvania, given the scope of forestry in Pennsylvania 
and the impact that any listing will potentially have on future 
conservation efforts affecting a broad range of wildlife species and 
forest health issues.
    Pennsylvania contains nearly 17 million acres of forest. Nearly 30 
percent of this acreage (4.8 million acres) is publically owned. An 
estimated 533,000 private owners hold over 70 percent of the forested 
acres (11.7 million acres) in Pennsylvania. Families and individuals 
are the dominant group in this private category, accounting for 54 
percent (9.6 million acres) of forest in Pennsylvania.
    Pennsylvania is the leading producer of hardwood lumber in the U.S. 
In 2012, the state's wood industry had $11.5 billion in sales. The 
total economic impact of wood industry amounted to $19 billion 
contributed to the state's economy, with total direct, indirect and 
induced employment of over 98,000 individuals. The state's forest 
products industry directly employs nearly 60,000 individuals, 
accounting for more than 10 percent of the state's manufacturing 
workforce.
Conclusion:

     Because of the continued gaps and conflicting data, we 
            request that the USFWS not list NLEB as endangered.

     We request that the USFWS forego the designation of any 
            forested areas as critical habitat.

     We request that the USFWS forego any mandated restrictions 
            on forest management practices. These will not prevent the 
            spread of WNS nor protect the NLEB from WNS, but will 
            impede public and private forest landowners from 
            effectively implementing other habitat and forest health 
            improvements.

     We urge the USFWS to work with other federal agencies, 
            state wildlife and forestry agencies and other stakeholder 
            to fill the gaps in the existing data and understanding of 
            NLEB and WNS.

     Finally, we urge the USFWS to focus its research and 
            efforts on the control and elimination of the WNS that is 
            the actual threat to NLEB and other bat species.

    Thank you for the opportunity to comment again on this proposal. We 
welcome any additional conversations on this process and other efforts 
to address the impact of white nose syndrome on NLEB and other bat 
species.

            Sincerely,

                                              Paul Lyskava,
                                          Executive Director, PFPA.

                              ATTACHMENT 2

                                                   August 29, 2014.

Docket No. FWS-R5-ES-2011-0024

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

Re: Final Determination on the Proposed Endangered Status for the 
        Northern Long-Eared Bat, 78 Fed. Reg. 61046 (October 2, 2013)

    To whom it may concern:

    We write to you today to provide comments on the U.S. Fish and 
Wildlife Service's (USFWS or Service) proposed listing of the northern 
long-eared bat (NLEB), Final Determination on the Proposed Endangered 
Status for the Northern Long-Eared Bat, 78 Fed. Reg. 61046 (October 2, 
2013), and to express significant concerns with the Interim Conference 
and Planning Guidelines issued by the Service in January of this year, 
Northern Long-Eared Bat Interim Conference and Planning Guidance, USFWS 
Regions 2, 3, 4, 5, & 6 (January 6, 2014).
    We recognize that the Service will not consider economic impacts in 
its determination whether to list the northern long-eared bat under the 
ESA. However, as you consider management and recovery policies, we 
believe it would be helpful to understand the breadth of the forest 
products industry throughout the range of the NLEB. While we summarize 
this in terms of economic impact, we urge you to also consider this as 
evidence of conservation opportunity. Of the 38 states touched by the 
NLEB range, the forest products industry has a significant presence in 
29.\1\ These states contain a total of 80,085,969 acres of public and 
private timberland. The industry provides a total of 2.2 million 
direct, indirect, and induced jobs with a combined payroll of $80 
billion. Annual timber sales and manufacturing shipments equaled $210.7 
billion, with a combined contribution to the states GDPs of $89 
billion. Forest-related industries made the largest contributions to 
their state manufacturing (on a percentage basis) in Arkansas, which 
was the highest in the South with 19.90 percent; Pennsylvania, the 
highest in Appalachia with 9.98 percent; Maine in the Northeast with 
23.73 percent; and Wisconsin with 14.04 percent in the Midwest.\2\
---------------------------------------------------------------------------
    \1\ These states are AL, AR, FL, GA, IL, IN, KS, KY, LA, ME, MD, 
MI, MN, MS, MO, MT, NH, NY, NC, OH, OK, PA, SC, SD, TN, VA, VT, WV, WI 
and WY.
    \2\ The source for this paragraph, which is based on 2010 economic 
data, is The Economic Impact of Privately Owned Forests in the United 
States (June 27, 2013) prepared by Forests2Market for the National 
Alliance of Forest Owners and is available at www.nafoalliance.org.
---------------------------------------------------------------------------
    As you know, this species is experiencing significant declines in 
parts of its range due to White Nose Syndrome. In the proposed listing, 
the Service affirms that ``White-nose syndrome is the most significant 
threat to the northern long-eared bat, and the species would likely not 
be imperiled were it not for this disease'' and that ``habitat concerns 
and other anthropogenic factors create no significant effects alone or 
in combination.'' 78 Fed. Reg. at 61072 (emphasis added). Although the 
Service asserts that when combined with the significant population 
reductions due to WNS, ``the resulting cumulative effect may further 
adversely impact the species,'' id., the only true threat to this 
species is clearly a wildlife disease, not habitat modification or 
loss.
    The fact is, where White Nose Syndrome is not yet present, 
populations of NLEB appear to be quite robust. For instance, the NLEB 
is one of the most frequently captured bats in mist net surveys on the 
Black Hills National Forest in South Dakota, one of the most heavily 
managed National Forests in the country. 78 Fed. Reg. at 61053. 
Moreover, prior to the introduction of White Nose Syndrome, NLEB's were 
regarded as ``most common'' in the Northeastern portion of their range. 
This vast swath of states, ranging from Northern New England through 
the lower portion of the Lake States and Indiana and all the way to 
parts of the Southeastern U.S., contains a mosaic of habitat types, 
forest ownerships, and land use practices. This strongly suggests that 
the bat is not dependent on a particular type of habitat, much less a 
particular age class of forest, and has not been adversely affected by 
forest management.
    In spite of the limited role that habitat conditions appear to play 
in the status of the NLEB, the Interim Guidance distributed in January 
suggests a completely unrealistic and unnecessary set of constraints on 
forest management during nearly every seasonal period. These 
restrictions include vaguely worded restrictions on prescribed burning 
at various times of year, restrictions on tree harvesting of all trees 
3 inches DBH and larger, and ambiguous direction to ``Avoid reducing 
the suitability of forest patches with known NLEB use.'' In essence, 
although the species has been shown to be present in forests with a 
variety of age classes and management regimes and, in fact, may depend 
upon management to perpetuate various habitat features over time, the 
Guidance seems to suggest that creating 5-mile radius ``no management'' 
zones around known hibernacula, and even greater summer habitat 
restrictions, is the best way to conserve bats. There is no evidence to 
suggest that these measures have anything to do with the spread of 
White Nose Syndrome, nor that they would do anything to prevent very 
high levels of mortality should WNS spread throughout the bat's range, 
as the Service speculates it will.
    As you know, several State natural resources agencies wrote to the 
Service on April 17, 2014, expressing serious concerns about the NLEB 
Interim Guidance. They noted that ``(a)lthough the USFWS solicited 
comments on the proposed listing, it did not afford our agencies an 
opportunity to assist in the drafting of the (interim guidance), and 
has not invited us to participate in the development of the 
consultation guidance.'' They also ``request an opportunity to provide 
input on this guidance and any other species guidance and avoidance 
measures before they are finalized.''
    The Directors note that the Interim Guidance ``is overly 
restrictive and too broad to be used as consultation guidance.. . . In 
particular, these measures protect summer habitat at a very high cost . 
. . If these measures were applied to all forested lands, they could 
impact hundreds of thousands of landowners managing their forests and 
have a crippling effect on our forest product industries. In addition, 
they would severely limit our ability to manage critical habitats for 
other species of special concern such as the Kirtland's Warbler (US 
Endangered), Karner blue (US Endangered), Golden-winged Warbler, and 
numerous savanna species that are dependent on intensive management.''
    We note that such restrictions on harvest, thinning, and prescribed 
burning could significantly complicate forest management efforts to 
maintain and enhance the habitat for other listed species, such as the 
Red Cockaded Woodpecker in the Southeastern U.S., and could limit your 
ability to implement needed forest management practices such as 
thinning overstocked conifer stands in the Rocky Mountains and 
regenerating aspen and mixed species stands in the Lake States and 
Northeast.
    In actuality, thinning overstocked conifer stands aligns with NLEB 
habitat requirements, and we are alarmed how the Interim Guidance 
discounted much of the science in the proposed listing that discussed 
summer roosting habitat. The proposed listing discusses the benefits 
from an active vegetation management program, stating: ``Studies have 
found that female bat roosts are more often located in areas with 
partial harvesting than in random sites, which may be due to trees 
located in more open habitat receiving greater solar radiation and 
therefore speeding development of young.'' 78 Fed. Reg. at 61060. The 
proposed listing also recognized that reproducing females generally 
have shown preference to roost ``in areas of relatively less canopy 
cover and tree density,'' 78 Fed. Reg. at 61057, and that ``Fewer trees 
surrounding maternity roosts may also benefit juvenile bats that are 
starting to learn to fly,'' 78 Fed. Reg. at 61055. These statements are 
supported by cited scientific research but are not reflected in any 
portion of the Interim Guidance.
    We are extremely concerned that the Service will use the Interim 
Guidance not only as a basis for consultation and Biological 
Assessments and Biological Opinions for current and future forest 
management projects on Federal lands (including sales under contract) 
but also as the general management scheme for all non-federal forested 
lands within the bat's range until the critical habitat and recovery 
plan are completed.
    It is absolutely vital that the Service work with other Federal 
agencies, State partners, and other stakeholders to revise and improve 
the Interim Guidance. Active forest management can help conserve the 
NLEB by creating a variety of stand conditions, ages, and types over 
time, providing secure habitat through management rather than by 
eliminating management. A reserve approach seems both unnecessary and 
unlikely to succeed. As members of the forest management and products 
community, we offer assistance to the Service to provide research for 
the control and elimination of the actual threat to the NLEB and other 
bat species, i.e.--White Nose Syndrome. Elimination of the disease is 
the best strategy to support and protect both the bat population and 
the wood products industry.
    Thank you for the opportunity to comment on this proposed listing. 
We also support the comments submitted by the National Council for Air 
and Stream Improvement (NCASI), a copy of which is attached.

            Sincerely,

        Alabama Forestry 
        Association                   Minnesota Forest Industries

        American Forest & Paper 
        Assoc.                        Minnesota Timber Producers Assoc.

        American Loggers Council      Mississippi Forestry Association

        Appalachian Hardwood 
        Manuf., Inc.                  Missouri Forest Products 
                                      Association

        Arkansas Forestry 
        Association                   National Alliance of Forest 
                                      Owners

        Associated Industries of 
        Vermont                       National Assoc. of State 
                                      Foresters

        Black Hills Forest Resource 
        Assoc.                        National Hardwood Lumber Assoc.

        Empire State Forest 
        Products Assoc.               National Wood Flooring 
                                      Association

        Federal Forest Resource 
        Coalition                     New Hampshire Timberland Owners 
                                      Assoc.

        Florida Forestry 
        Association                   North Carolina Forestry 
                                      Association

        Forest Landowners 
        Association                   Northeastern Loggers' Association

        Forest Resources 
        Association                   Ohio Forestry Association

        Georgia Forestry 
        Association                   Oklahoma Forestry Association

        Great Lakes Timber 
        Professionals                 Pennsylvania Forest Products 
                                      Assoc.

        Hardwood Federation           Society of American Foresters

        Hardwood Manufacturers 
        Assoc.                        South Carolina Forestry 
                                      Association

        Hardwood Plywood & Veneer 
        Assoc.                        Southeastern Lumber Manuf. Assoc.

        Illinois Lumber & Materials 
        Dealer Assoc.                 Tennessee Forestry Association

        Indiana Hardwood 
        Lumbermen's Association       Virginia Forest Products 
                                      Association

        Intermountain Forest 
        Association                   Virginia Forestry Association

        Kentucky Forest Industries 
        Assoc.                        Westside Hardwood Lumberman's 
                                      Club

        Lake States Lumber 
        Association                   West Virginia Forestry 
                                      Association

        Louisiana Forestry 
        Association                   Western Hardwood Federation

        Maine Forest Products 
        Council                       Wisconsin County Forests Assoc.

        Maple Flooring Manuf. 
        Assoc.                        Wisconsin Paper Council

        Massachusetts Forest 
        Alliance                      Wood Component Manuf. Assoc.

        Michigan Forest Products 
        Council

                              ATTACHMENT 3

          Pennsylvania Forest Products Association,
                                            Harrisburg, PA,
                                                   January 2, 2014.

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

Re: Endangered and Threatened Wildlife and Plants; Listing the Northern 
        Long-Eared Bat as an Endangered Species--[Docket No. FWS-R5-ES-
        2011-0024]

    Dear USFWS:

    The Pennsylvania Forest Products Association (PFPA) offers the 
following comments related to the above referenced proposal to list the 
northern long-eared bat (Myotis septentrionalis) as an endangered 
species and to not list the eastern small-footed bas as a threatened or 
endangered species.
    The Pennsylvania Forest Products Association (PFPA) is the leading 
trade group in the state representing the various sectors of the forest 
products industry. Pennsylvania leads the nation in the production of 
hardwood lumber. PFPA's membership accounts for approximately three-
quarters of the state's hardwood lumber production and many of the 
leading pulp and fiber utilizing manufacturing facilities in the state. 
PFPA's members also own or manage more than one million acres of 
private forest in Pennsylvania. Forest product manufacturing is an 
important component to the state's economy, employing an approximately 
60,000 Pennsylvanians.
    PFPA is also the administrative host and sponsor of the 
Pennsylvania Sustainable Forestry Initiative' (PA 
SFI'), which has provided safety, environmental and 
ecological training to more than 7,000 loggers, foresters and others. 
It is the leading logger training program in the state. PA 
SFI' regularly includes courses related to wildlife, habitat 
and biodiversity issues as part of its continuing education 
opportunities.

    We offer the following comments on the related proposal:
Proposed Listing of northern long-eared bat:
    We believe that the information provided in the Status Review of 
its proposal is insufficient to support the listing of the northern 
long-eared bat at this time. The Status Review acknowledges that the 
information regarding the impact of white nose syndrome on the species 
is limited, with significant data gaps, conflicting information, over-
reliance on antidotal information and other data that has not been 
peer-reviewed, and assumptions that may well not accurately reflect 
what is happening to the species across its range.
    For example, the Service references reports of declines from winter 
cave surveys in Pennsylvania and a limited number of other states. 
However, this is not confirmed by adequate surveying in during other 
seasons of the year. This is noteworthy, as the Service acknowledges 
that the northern long-eared bat is easily overlooked during 
hibernacula surveys. It is also noteworthy that recent summer mist net 
surveys and acoustic surveys in several states indicate the northern 
long-eared bat to be among the most common bat detected.
    Given the data gaps and use of anecdotal and non-peer reviewed 
information, we believe that the proposal is not supported by the best 
scientific and commercial data available, as is required by the 
Endangered Species Act.
State Regulatory Actions:
    In its Status Review, the Service has wrongly mischaracterized (p. 
61068) a pending bill in the Pennsylvania General Assembly (HB 1576) as 
a proposal to prohibit state species listings. This is representation 
is incorrect, as the bill explicitly does continue to allow for state 
listings and provides a defined process that ensures that proposed 
listings are reviewed to ensure that they are based in sound science 
and open to public comments, as is the required by the Federal 
Endangered Species Act. It should also be noted that this bill has been 
introduced, but not yet enacted into law, not unlike the thousands of 
other bills introduced in the Pennsylvania General Assembly each 
legislative session--including HB 1099, which would mandate the state 
endangered listing of northern long-eared and other bat species. Given 
the uncertainly of final enactment, this legislative proposal did not 
warrant mention in the Status Review, let alone it mischaracterization.
    Furthermore, we do not believe that the Service has fully 
considered to actual state efforts which are on-going and under 
development to both address white nose syndrome and conserve the 
northern long-eared bat, nor have states been given adequate time to do 
the necessary research to fully develop and initiate their own action 
plans. The Endangered Species Act allows for federal determinations to 
be made only after taking into consideration all of the efforts of the 
states and political sub-divisions to protect the species.
Critical Habitat:
    The Service's proposes to list northern long eared bat as 
endangered of extinction predominately due to the threat of white nose 
syndrome. The Service has stated that the even if all habitat-related 
stressors were eliminated or minimized, the significant effects of 
white nose syndrome on the northern long-eared bat would still be 
present.
    There is little definitive research that suggests that specific 
forest types of forest structures are a limiting factor for survival of 
the species or that restricting forest management activities will aid 
the species in recovery. There is also little evidence linking forestry 
activities to the spread white nose syndrome.
    We urge the Service to forego the designation of any forested areas 
as critical habitat, as no specific area of its range is critical to 
its future survival. Although the Service states that there is much to 
learn about the interactions between the species and its forest needs, 
there does seem to be a level of consensus that the northern long-eared 
bat is more of a forest generalist able to utilize a wide variety of 
forest conditions.
    The only areas where critical habitat may be warranted are the 
hibernacula, as this is where white nose syndrome seems to have its 
greatest direct impact on the species.
    We also urge the Service to minimize the restrictions on forestry 
as part of the recovery plan. These restrictions will have little if 
any impact on preservation of the species. They will, however, 
negatively impact thousands of hardworking families that depend on 
forest product jobs for their livelihood. We also believe that 
unnecessary and unproductive regulation of forestry activities will 
ultimately discourage forestry practices that may help improve forest 
habitat to the benefit other species.
Decision to deferral on listing of eastern small-footed bat:
    We agree that with the Service's determination that a threatened or 
engendered listing of the eastern small-footed bat is not warranted at 
this time, given the survey data and information on the species known 
at this time.
Response to the information request:
    We offer to the Service the following information:

     According the U.S. Forest Service, there was a one percent 
            net gain of forestland cover in Pennsylvania between 2004 
            and 2009, with the minimal conversions of forest acres to 
            non-forested and agricultural uses off-set by other lands 
            reverting to forest. http://www.fs.fed.us/nrs/pubs/rb/
            rb_nrs82.pdf. Prior to that, there was no significant 
            change in the total acreage of forestland cover between 
            1989 and 2004. http://www.nrs.fs.fed.us/pubs/2990.

     Since 2007, Pennsylvania's forest products industry has 
            suffered through a significant downturn of which it is 
            still struggling to recover. Hardwood lumber production in 
            the state dropped by more than 40% since 2006. These are 
            the lowest levels of sawmill production since the Great 
            Depression. http://www.fs.fed.us/nrs/pubs/rb/rb_nrs82.pdf.

    This data is offered as further evidence that the reported demise 
of the northern long-eared bat in Pennsylvania is not due to any 
scarcity of forest habitat for the species. The reported decline of the 
species has occurred during a period where the forest cover in the 
state has been stable and there has been a historic low level of timber 
harvesting and other forestry activities in the state.
Conclusion:

     We request that the Service withdraw or delay the proposed 
            listing of northern long-eared bat until gaps in the 
            science and species data have been addresses, information 
            peer reviewed and all current efforts to protect the 
            species have been fully considered.

     We also request that the Service forego the designation of 
            any forested areas as critical habitat.

     We agree that with the Service's determination that a 
            threatened or engendered listing of the eastern small-
            footed bat is not warranted at this time.

    Thank you for the opportunity to comment on this proposal. We 
welcome any additional conversations with the U.S. Fish and Wildlife 
Service on this process and other efforts to address the impact of 
white nose syndrome on this and other bat species.

            Sincerely,

                                              Paul Lyskava,
                                          Executive Director, PFPA.

                                 ______
                                 

    The Chairman. Thank you very much. And I do want to thank 
all of you. I allowed several to go over because some of you 
were less, and so I am keeping score up here and I--it works 
out precisely perfectly.
    Before we go to the question from the Members up here, I 
have 13 letters here from Members of Congress, from Governors 
and State Departments of Natural Resources, from the States of 
Pennsylvania, Ohio, West Virginia, North Carolina, Georgia, 
Alabama, Mississippi, Louisiana, Wisconsin, Indiana, Michigan 
and Minnesota, all raising concerns with the Fish and Wildlife 
Service proposal to list the Northern Long-Eared Bat, and I ask 
unanimous consent to be a part of the hearing. Without 
objection, so ordered.
    Normally, the Chairman has all the power in these 
committees and he gets to start the questioning, however, in 
deference to my hosts here in Pennsylvania, I am going to allow 
my colleagues from Pennsylvania, and then I will follow up, and 
we may have more rounds of questioning rather than just a round 
of questioning, it just depends on the interest here so far.
    So with that, let me recognize Mr. Thompson for 5 minutes 
for questioning.
    Mr. Thompson. Well, Mr. Chairman, with unanimous consent, 
we acknowledge you are all-powerful, and I appreciate you 
deferring.
    Once again, good morning, everybody. Thank you for being 
here, thanks for your testimony.
    Ms. Matteson, I want to start with--there seemed to be some 
really conflicting points of testimony, and sometimes, not just 
your testimony, but testimony--even with language within the 
citizens' petition on this issue, and your testimony, whether 
it is total, it seems like you are projecting there is total 
consensus on the science, and even within the citizens' 
petition where it really indicates that there is very, very 
limited consensus. And one particular area I wanted to check in 
on was under your testimony on protective measures which, you 
know, if they are effective, they are science-based, I think 
that is wonderful.
    So my question is, in your testimony--written testimony, 
you talked about no regulations or conservation plans currently 
exist that address this issue, and specifically, the Chairman 
referenced the State of Minnesota; Minnesota, Wisconsin, 
Michigan, Indiana, Natural Resources Agencies requested in 
April 2014 a letter that the Fish and Wildlife delay 
protection, and the objection to the organization was that none 
of these states have programs to conserve and recover. My 
question is, was your organization supportive of--out of 
Pennsylvania, we have a, was put forward the Habitat 
Conservation Plan, which just--was just not Pennsylvania, it 
had to go through a complex and extensive process with the Fish 
and Wildlife Service, and it is supported by the U.S. Forest 
Service, National Park Service, and then Pennsylvania Forest 
Products and various aspects of the industry, so it really had 
some very strong Federal Government endorsement. Is that what 
was missing from Minnesota, so is your organization on record 
then of supporting the Habitat Conservation Plan that was put 
forward by the Commonwealth of Pennsylvania with those other 
strong partners, including the U.S. Forest Service and, I 
apologize, and the National Park Service?
    Ms. Matteson. Excuse me, Representative Thompson, which 
Habitat Conservation Plan are you referring to? Was this for 
the Northern Long-Eared Bat?
    Mr. Thompson. Yes--well, actually, it was originally put 
forward for the Indiana Bats, to accommodate current and future 
forest management activities on state lands.
    Ms. Matteson. I think--if I understand your question 
correctly, you are asking me if the Center for Biological 
Diversity is in support of habitat conservation plans?
    Mr. Thompson. Correct.
    Ms. Matteson. We certainly are, yes.
    Mr. Thompson. Well, then it is entered in your testimony 
though you--shortly after this was submitted--by the way, 
included, actually, the National Guard as well because of our 
training center in this area. Shortly afterwards, your 
organization, along with several other national environmental 
groups, sent a letter to the Federal Fish and Wildlife Service 
urging denial of the ACP.
    Ms. Matteson. OK, now I----
    Mr. Thompson. And so----
    Ms. Matteson. I--yes, now I understand which ACP you are 
talking about.
    We support habitat conservation plans. We were arguing with 
the content of that plan, not the idea of a plan.
    Mr. Thompson. OK. One of the--you know, in your testimony, 
you talk about publicly available data, you talk about how some 
opponents from the Endangered Species Act have asserted that 
recent summer bat surveys, like hibernacula surveys indicate 
the Northern Long-Eared Bat is still abundant, however, 
publicly available data such as studies and surveys cited above 
paint a clear picture of ongoing and dramatic decline of the 
species. So I assume, obviously, your organization is very 
supportive of transparency in terms of publicly available data?
    Ms. Matteson. I am supportive of transparency, yes.
    Mr. Thompson. Yes. Is your organization supportive of the 
measure that we recently passed out of the House of 
Representatives, which basically was all about transparency, it 
would just require the Fish and Wildlife Service to make public 
the science and the data that it uses for making determinations 
of listing? I think we passed it out of the House----
    Voice. Bipartisan.
    Mr. Thompson. It--with bipartisan support within the past 
month, I believe.
    Ms. Matteson. Well, I am not personally familiar with that 
legislation, but we are certainly supportive of data being----
    Mr. Thompson. Transparency.
    Ms. Matteson [continuing]. Data transparency, yes.
    Mr. Thompson. OK, so--as am I. Thank you.
    Representative Pyle, it is great to see you again.
    Mr. Pyle. Good to see you again.
    Mr. Thompson. Can you discuss what listing by either both 
the state or the U.S. Fish and Wildlife would mean for 
Pennsylvania from a regulatory standpoint? In other words, 
should the Northern Long-Eared Bat be listed by the state or 
Federal Government, and what kind of burden and regulatory 
responsibility would this put on the State of Pennsylvania?
    Mr. Pyle. It would be profound, Congressman. As you can 
see, its range pretty much goes from coast-to-coast, top to 
bottom.
    I can tell you from personal experience what is going to 
happen if this goes down. What they are going to do is they are 
going to go up and they are going to tell you this is where the 
bat is. In our case, the Pennsylvania Game Commission of 
Pennsylvania, Fish and Boat Commission, oversee the Endangered 
Species Act. What the gentlemen probably don't realize is in 
addition to your endangered species list, we have one of our 
own also.
    I can give you an opinion, Congressman, and say anybody who 
wants to walk on my family land and tell us what we can do with 
it after 200 years of treating it well and raising scores of 
dairy cow that fed the whole place, I can tell you that should 
one of these people show up and tell us what they are going to 
do with our land, it is going to be met with opposition.
    Now, on an official level, we in Pennsylvania in the 
Commonwealth have similar difficulties that you on the Federal 
level are having, only you just brought up something that I 
think is a great idea here. I recently tried to run an 
Endangered Species Coordination Act. I was met with such a wall 
of grief. Now, what their main oppositions are going to be were 
exactly what you just identified; transparency. One of the 
parts of our bill that was not run was that if there is a 
developer willing to come into an area, either to log timber, 
mine coal, or build a cul-de-sac or a shopping mall, one of the 
parts of our bill we felt was fair was the caveat emptor 
clause, where, before somebody has to put down large sums of 
money to buy the property to develop whatever they want, they 
would go to our Fish and Game or--you know, Commissions and 
ask, do you have any hits on endangered species on this 
property. Absolute objection, dig your heels in and fight. 
Which tells me what they want to do is they want you to put the 
money up first so they can come in later and say, surprise.
    Now, how can I back that up? I can give you examples from 
Clarion County where a family had a couple hundred acres and 
they wanted their boy to build on it, and the kid went off to 
school in California, made all kinds of money, came back, Dad 
wanted to carve off half the land, and one day the guy walks 
out and there is a guy walking up and down through Redbank 
Creek on his property. And the guy said, who are you, and the 
guy said, I am from Fish and Wildlife and you have a Massasauga 
snake habitat. And the guy said, we have never had snakes here, 
where is it. And he took him down to the stream and he showed 
him a bunch of piled-up rocks, and he said, that is perfect. 
And the guy said, what does that mean to me, and he said, well, 
$30,000 for offset acreage and we will let you build on land 
your family has owned for 100 years. Are you serious? You know 
what I mean.
    Especially in the northern tier, Pennsylvania's hardwood 
industry is huge. If you cut down our ability to feed our kids, 
you are essentially exercising a de facto eminent domain on us.
    The Chairman. Representative Pyle, we have others, I----
    Mr. Thompson. Thank you, Chairman.
    The Chairman. Mr. Perry is recognized.
    Mr. Perry. Thank you, Mr. Chairman. I will turn to Mr. 
Pyle.
    It is my understanding and recollection that you used to be 
an educator, is that correct? You taught in the school system 
in Pennsylvania?
    Mr. Pyle. Fourteen years in the public high schools.
    Mr. Perry. Did you teach anything other than the facts?
    Mr. Pyle. No.
    Mr. Perry. So if I tell you the Federal Government has 
currently listed 1,553 domestic species as threatened or 
endangered, and over 40 years recent analysis has determined 
that about 33 species have ever been deemed recovered and 
removed from the list, in regard to Ms. Matteson's testimony 
that says that the ESA is 99 percent effective because it saves 
endangered species. Now, I know that is quick math for you, 
Representative Pyle, is this 99 percent effective statement 
true based on what I just told you, the 1,553 versus the 33 
species over 40 years?
    Mr. Pyle. I would say statistical analysis would not bear-
up the assertion, sir.
    We have, however, in my county, had great success with new 
breeding pairs of Bald Eagles, and we are pretty happy about 
that.
    Mr. Perry. So as you know, the Endangered Species Act is--
as it is currently written, requires the best scientific and 
commercial data available, and I quote, ``best scientific and 
commercial data available.'' The FWS proposed ruling calling 
for the endangered listing of the Long-Eared Bat refers to 
unpublished reports 87 times, and refers to some studies that 
were written in 1940 and 1969. With all due respect, Ms. 
Matteson, in her written testimony, claims that this is the 
best available science and listing--and that the listing should 
occur based on that. Eighty-seven times unpublished reports, 
and studies written in 1940 and 1969, just based on that, do 
you agree with her finding?
    Mr. Pyle. No, I do not, Congressman. It is--you can repeat 
a lie over and over and over, and thousands of people rank upon 
row can repeat it, but that is not going to make it true.
    Mr. Perry. Thank you.
    Ms. Matteson, your disclosure mentions that the Center for 
Biological Diversity files on average about 42 lawsuits a year. 
When your organization receives taxpayer financed attorney fees 
from those lawsuits from the Federal Government from some of 
these lawsuits, how much does your organization invest into 
habitat for existing endangered species? How much do you turn 
back into habitat--saving the habitat or safeguarding the 
environment of those funds?
    Ms. Matteson. Well, first of all, the amount of money that 
we receive from litigation is a very small percentage of our 
budget. It is, on average, less than 5 percent----
    Mr. Perry. But it is----
    Ms. Matteson [continuing]. A year.
    Mr. Perry [continuing]. Up to $600 an hour, which goes way 
above the limit for Federal attorney fees as I understand it. 
Is that correct?
    Ms. Matteson. I am not an attorney, I am a biologist, so--
--
    Mr. Perry. OK.
    Ms. Matteson [continuing]. I am not familiar with that.
    Mr. Perry. Fair enough. All right, so it is a small 
percentage, but how much is reinvested into habitat reclamation 
or protection?
    Ms. Matteson. So we are a group that focuses primarily on 
advocacy for endangered species.
    Mr. Perry. Do you know? Is there an answer? I mean I----
    Ms. Matteson. We----
    Mr. Perry [continuing]. If you don't, it is OK----
    Ms. Matteson. We----
    Mr. Perry [continuing]. I just----
    Ms. Matteson. We do some conservation land work in the 
Southwest, but primarily we are an advocacy organization.
    Mr. Perry. All right. If you could at some point, we would 
love to get that figure, how much your organization uses for--
to invest in habitat for endangered species.
    Moving on, can you name the timber sales on Federal land 
that your organization has supported? Which ones?
    Ms. Matteson. I cannot answer that question.
    Mr. Perry. Do you know if there are any?
    Ms. Matteson. I am not familiar with the answer to that 
question.
    Mr. Perry. OK. It is my understanding that there aren't 
any, and it just leads us to believe, with all due respect, 
that the organization is opposed to any timbering whatsoever. 
And while we depend on the things that we are sitting behind, I 
hate to mention it but toilet paper is really important to a 
lot of people, it is an important industry and we would hope 
that there would be a balance from your organization as well as 
from the Federal Government.
    To Mr. Brubaker, you indicated that barns and silos could 
be impacted by the Federal bat designation. What would happen 
if you were a homeowner who had a bat lodged in a wall or a 
fireplace, or if a bat got into your house, could you be liable 
and subject to fines under Federal law if you harmed this bat, 
based on your understanding of this----
    Mr. Brubaker. Based on my understanding, I would say that 
we could be, and I have had the experience too of needing to 
rid a bat from my bedroom. And in that particular case, there 
is no discretionary decision; the bat will go.
    Mr. Perry. So you would be in violation of the Federal 
statute, the Federal rule if you tried to clear the bat from 
your kitchen, your bedroom, your living room----
    Mr. Brubaker. That is----
    Mr. Perry [continuing]. You would be----
    Mr. Brubaker. That is my understanding.
    Mr. Perry [continuing]. In violation?
    Mr. Brubaker. That is my understanding.
    Mr. Perry. That is great.
    All right, Mr. Chairman, I yield.
    The Chairman. Thank both of you for your statements.
    I just want to make kind of a big picture observation, and 
I do have a question for Mr. Lyskava, but the Endangered 
Species Act has been around since 1973, and there have been, as 
Mr. Perry pointed out, 1,553 listings and 33 species recovered. 
Now, I am sure people here in Pennsylvania, with two Major 
League baseball teams, are all baseball fans. Let me just ask a 
rhetorical question here. You don't have to answer, but if you 
are 33 for 1,553, would you even qualify for T-ball at that 
batting average? I mean, but that is what we are dealing with.
    Now, here is the--what I think is a huge, huge issue with 
this mega listing; 1,553 listings in 40 years. This mega 
settlement could be more than 750, or roughly 50 percent more, 
in the next 2 years, and the mere fact that the testimony and 
all of you have heard, I have certainly heard over and over and 
over, is the simple fact that the data is questionable. If the 
data on the Long-Eared Bat is 40 years old at best, and even 
the petitioner says that you can't draw conclusions, does that 
give you any confidence that the 750 potential listings of the 
mega settlement will be any better, or probably worse? And that 
is what the issue facing the committee is. And by the way, 
going back to Mr. Thompson's question to Mrs. Matteson, for the 
record, the Center for Biological Diversity opposed the 
legislation to have transparency in listings or de-listings. 
They opposed that legislation that passed on a bipartisan 
basis.
    Mr. Lyskava, I want to follow up, since you are in the 
timber industry and I alluded to in my opening statement the 
Spotted Owl in the Northwest, and the fact that timber harvests 
have declined by some 80 percent. On Federal land, by the way, 
it is 90 percent in where it is listed. And the issue of the 
Spotted Owl was the lack of old growth timber, and that is 
supposedly why that was listed.
    We have now discovered, however, that it is not the lack of 
old growth, but rather a predator called the Barn Owl. It is a 
little bit larger than the Spotted Owl. Big guys beat up on 
little guys, that is in human nature, I guess, forever. By the 
way, I should say, Fish and Wildlife's response to that is to 
shoot the Barn Owl, by the way. That is the response. This just 
happened.
    Now, Mr. Lyskava, I want to ask you a question. Do you see 
any similarities with what has happened in the Northwest with 
the Spotted Owl that could happen if the Long-Eared Bat is 
listed here in Pennsylvania?
    Mr. Lyskava. Mr. Chairman, the proposed listing for the 
Northern Long-Eared Bat is our Spotted Owl moment. It is our 
Spotted Owl moment for Pennsylvania, for the other Appalachian 
states, for the states in the northern part of the range, and 
the other areas within the range of the Northern Long-Eared 
Bat. And I would agree with you, sir, that the economic impact 
is going to be severe, and those aren't faceless jobs, those 
are tens of thousands of families that are going to be 
impacted, whose family structure is going to be severely 
stressed when they lose those jobs. Those rural communities 
that depend upon forest products are going to be severely 
impacted. And as you had stated previously also, the benefits 
of forestry activities which would take place; forest health 
activities, we don't--in the eastern United States, we do not 
have the problems with fire that you do in the West, but we do 
have a lot of forest health issues out there as it relates to 
Gypsy Moth, Hemlock wooly adelgid, Emerald Ash Borer, and 
dealing with those issues, both on private forest land and 
public forest land, we will be precluded from doing that. And, 
ironically, both private and public forest landowners will be 
precluded from initiating the forestry activities which help a 
wide variety of other species, whether they be a listed species 
such as the Indiana Bat, in which the--as was previously 
mentioned, the Pennsylvania Department of Conservation and 
Natural Resources, and the Pennsylvania Game Commission, are 
looking at submitting a habitat conservation plan to help 
improve the habitat for Indiana Bat, or the wide variety of 
other species that are out there that the citizens of the 
Commonwealth and citizens of the United States would like to 
have around, and it is all going to be severely impacted 
without this listing, again, without--because we are talking 
about disease, sir, all this listing and all those negative 
impacts will provide no positive affect upon the survival of 
the Northern Long-Eared Bat.
    The Chairman. OK, my time has expired.
    We will start a second round, and I will recognize Mr. 
Thompson.
    Mr. Thompson. Thank you, Chairman.
    Mr. Biggica, in your testimony you talked about projected 
impact, I think the number was 650 rural electric co-ops or 
around within that region, that green area, that was new 
information to me, but it makes sense. You talked about the 
conflict in compliance, basically, caught--basically, double 
jeopardy that rural utilities faced with regard to tree removal 
versus potential ESA restrictions, because there are 
regulations on both, and I wanted to see if you could expand on 
that a little bit. In your experience, does the ESA provide the 
flexibility to account for common sense, but also to be able to 
mitigate its way through conflicting regulations that are 
imposed upon the industry?
    Mr. Biggica. Congressman Thompson, this is our catch-22. 
Where do we go? We have two agencies asking two different 
things from us. It attacks us a little differently in 
Pennsylvania with the rest of our cousins throughout the rural 
areas, both on the transmission side and on the distribution 
side. And NERC has a zero tolerance when it comes to tree 
trimming and vegetation management. Even beyond our right-of-
ways, NERC has asked G&Ts, generation transmission 
cooperatives, that not only are responsible for our right-of-
way, which is usually for a transmission line about 200 feet, 
even beyond the right-of-way, if there is any threat to dead 
trees or imposing trees on those lines. We have faced 
tremendous problems with right-of-way clearing. In the State of 
Pennsylvania, as you know, about a year-and-a-half ago, we had 
the tremendous ice storm that affected your cooperative, 
Congressman, down in Adams. We had some people who were out for 
almost a week. Luckily for the cooperatives, our reliability 
was better than the other utilities around. They were out for 
3-4 weeks. Clearing, vegetation management, right-of-way 
trimming is a direct correlation with reliability, and that is 
of utmost importance.
    Our people are very reasonable people, but when you are out 
for a week because a tree is lying across the power line, they 
become very unreasonable. And we have found that the 
correlation between trimming, vegetation management is so 
important to the stature of the cooperative and the commitment 
to its consumers.
    Mr. Thompson. Thank you.
    Mr. Stilley, your testimony mentioned permitting delays. 
Should the Northern Long-Eared Bat be listed, what kinds of 
impacts might delays have on permitting and ultimately on your 
business?
    Mr. Stilley. It creates a huge problem for us. You know, in 
the coal industry in particular, we have been mining coal in 
Pennsylvania for the last 150 years. As I mentioned in my 
testimony, anywhere between one-third and one-half of the sites 
that we move on to mine coal today have been previously either 
surface mined or deep mined in years past. So, in effect, the 
permits that we need to secure to maintain our level of 
operation are our lifeblood. Our jobs last anywhere from 3 
months to 2 years, and we are moving from site to site as often 
as 9 months to a year apart.
    The impact of the Endangered Species Act, and requirements 
under the permitting requirements, extend the review time by 
the DEP, who are working under privacy with OSM, by as much as 
anywhere from a year to a year-and-a-half. So in effect, if we 
don't have a permit issued, our guys stay home, our equipment 
stays parked. We have contractual arrangements to ship coal to 
various utility companies in Pennsylvania, and industrial 
customers up in New York State. If we can't get the permits to 
maintain our consistent production of coal, we are then in 
violation of those contractual obligations. And the way the 
coal industry is today, with the number of plant closings that 
have taken place under the Obama administration, you can ill 
afford to miss any potential to be able to ship coal because 
chances are, a year from now, those opportunities are going to 
disappear. We have to be able to get permits on a timely basis, 
and this is just another impact that precludes us from not 
being able to get that done.
    Mr. Thompson. Thank you.
    Mr. D'Amico, talking about permits, you had mentioned in 
your testimony that PIOGA and eight other companies requested 
an emergency petition to Fish and Wildlife in February 2014, 7 
months ago. Still no response back from that office?
    Mr. D'Amico. No, sir.
    Mr. Thompson. Yes. What else can you say, except I yield 
back.
    The Chairman. Mr. Perry.
    Mr. Perry. Thanks, Chairman.
    Mr. Biggica, you are a co-op, right, or you represent co-
ops, so just explain to everybody that--the customers are 
owners, right? Customers--your customers are--they own----
    Mr. Biggica. Are the owners.
    Mr. Perry [continuing]. The electricity company----
    Mr. Biggica. Yes.
    Mr. Perry [continuing]. Power company. So how would a 
listing of the Northern Long-Eared Bat complicate your ability 
to provide electricity and transmission to parts of the state, 
and can you elaborate based on a direct and indirect cost about 
that?
    Mr. Biggica. Well, the costs are hard to substantiate right 
now, but we can tell you that most importantly there is a 
direct correlation. It is probably the most labor intensive and 
financial intensive project that we do as cooperatives. There 
is nothing more important than clearing right-of-way. There is 
nothing more devastating than downed power lines. As I said 
with NERC, they have a zero tolerance when it comes to 
transmission lines. On the other side, on the distribution side 
which we are most in Pennsylvania familiar with, we only have 
about 11 miles of transmission lines. We are working with the 
PUC with jurisdictional utilities, as you know, we are owned 
and operated by cooperatives, so we are non-jurisdictional, but 
because of the devastation that we have experienced in 
Pennsylvania with the hurricanes and the ice storm, the PUC, 
rightfully so, is also taking a zero tolerance toward it, but 
when it comes to cost, it is the most expensive aspect of a 
cooperative operation and that is to clear the lines. We 
usually do--we do it all the time on emergency bases, but we 
have cycles; either 3, 4 or 5 years. Five years is kind of 
pushing the cycle.
    Mr. Perry. So let me ask you this, who pays for that?
    Mr. Biggica. Well, our cooperative owners, the members.
    Mr. Perry. Who are your owners?
    Mr. Biggica. Our owners are the people who receive the 
electricity from us.
    Mr. Perry. It is your customers, right?
    Mr. Biggica. That is exactly right.
    Mr. Perry. And they are going to be paying the bill for 
this based on inexact science, I think you would----
    Mr. Biggica. Exactly right.
    Mr. Perry [continuing]. Conclude.
    Ms. Matteson, the Endangered Species Act as it is currently 
written requires, again, and I want to use this quote, ``the 
best scientific and commercial data available.'' In your 
experience, if data isn't available, often unpublished studies 
or opinions are used. I mean I read that in your own testimony. 
In your view, is that the best? Is that the best?
    Ms. Matteson. It is the best available at the time. In----
    Mr. Perry. It doesn't say at the time, it says the best 
scientific and commercial data available. It doesn't say at the 
time, it says available.
    Ms. Matteson. If we continue to wait on endangered species, 
they will go extinct.
    Mr. Perry. If we continue to wait on----
    Ms. Matteson. But we need to----
    Mr. Perry. Even if the data is----
    Ms. Matteson. We need to protect----
    Mr. Perry [continuing]. One hundred percent flawed--you 
would say even if the data is 100 percent flawed, White Nose 
Syndrome is causing it, it has nothing to do with habitat, 
human activity, we must move forward anyhow. Would that be your 
assertion then based on that?
    Ms. Matteson. The law says to use the best scientific and 
commercial data available, and that is what is in this 
decision----
    Mr. Perry. So you are saying this data that is from 1969 
and 1940, that is the best available?
    Ms. Matteson. I don't know the context of how that 
particular reference was used. It may have been historical----
    Mr. Perry. OK.
    Ms. Matteson [continuing]. But most of the information, 
most of the reference that went into the proposed rule is much 
more current than that. And sometimes publication takes a long 
time, so you have to go with what is currently available.
    Mr. Perry. I would say we all want to save these endangered 
species, and as a person--marvel at bats, they eat a lot of 
insects and we want them around, and live in our barns and in 
our fields and forests and so on, we want them around, but we 
want to make sure we are making the proper--taking the proper 
discretion regarding impacting people and animals' lives from a 
Federal law standpoint. If we have insufficient, incorrect, 
outdated data, it seems to me that that is not the best 
scientific or commercial data available.
    While I complete here, Mr. Stilley, you are in the mining 
business, heavily, heavily regulated. Rightly so, right, based 
on safety, et cetera. If I said to you, you must use the best 
scientific and commercial data available regarding your safety 
program, and you gave me something decades old and said, well, 
this is what I've got, do you think that that would fly in the 
face of the regulators that you deal with? Do you think that 
they would accept that and let you continue to operate based on 
what we knew 20, 30, 5 years ago, as opposed to today? Just 
curious, because we live by the same set of rules, right? We 
should. Your comments.
    Mr. Stilley. MSHA is our current regulator for the mining 
industry, Mine Safety and Health Administration. They are 
revamping their regulations and policies on a daily basis. To 
think that we would be living under regulations as posed and 
required of us 30 years ago and try to do that with MSHA, we--
first of all, it is not the right thing to do, and second, we 
would be shut down today. We must, for the sake of our 
employees and the guys working in the mines, make sure that it 
is as safe and sound a place as staying at home. And that 
requires up-to-date, current information at this instant in 
time, pure and simple.
    The Chairman. Thank you very much, Mr. Perry.
    Mr.--I want to kind of follow up on this. Mr. D'Amico, in 
your testimony, you said that the proposed listing is not 
based, this is the line of questioning Mr. Perry had here, is 
not based on the best scientific and commercial data that is 
available, and I tend to agree with you. Yet, on the listing by 
the Center for Biological Diversity, on page 11, they state, 
and this is a direct quote from that petition, ``little is 
known about population trends for the Northern Long-Eared 
Bat.'' Now, that is in their petition listing. They further go 
on to say that because that small amount of population data, 
they say this, and I quote, ``make--to make any conclusion, 
provisional at best.''
    So this is what Fish and Wildlife got from the petitioner, 
and yet Fish and Wildlife went ahead with this listing. Your 
comments on that process.
    Mr. D'Amico. I think there is an overall concern here, and 
you made reference to it in your initial comments, and as the 
process of the mega settlement. When the Center proposed 
several hundred species at one time, you have a Federal agency, 
the Fish and Wildlife Service, that now all of a sudden has a--
basically an insurmountable effort to do, because they have to 
review this, make a determination in one year's time or they 
are going to be in court back with the Center or some other 
environmental group trying to do it. So from their standpoint, 
if I put myself in the Fish and Wildlife's shoes, they are 
afraid to make the wrong decision, and from their standpoint, 
as protectors of wildlife, they are going to err on the side 
of, well, you know, let's regulate everything to death. The 
problem with that concept is the overall damage that it does to 
the entire country, whether it is my industry, and actually it 
is kind of, you know, somewhat of a relief hearing all the 
impacts that are happening to everybody else, because there are 
times we have to focus on our industry and, oh, my God, these 
people are just trying to put us out of business, for the 
Northern Long-Eared Bats with our industry here in the East or 
the Prairie Chicken in the West, you know, we are hearing the 
same kinds of things.
    But the bottom line is, at some point we need to have 
things and protections that don't shut down the entire economy, 
don't shut down farming so we can't feed our people, doesn't 
shut down the natural gas industry so that we can't keep people 
warm, it doesn't shut down the coal industry so that 
electricity can be generated, and, frankly, Russ, you know, 
from your standpoint, if we can't produce the energy to make 
the electricity, you don't have anything to worry about because 
it is not going to affect you. We won't have any electricity. 
But this is the problem; I think there is absolutely no common 
sense, sir, in these regulatory agencies, and how these rules 
are being conducted. And, unfortunately, something that you all 
are very well aware of, there is such a partisanship in the 
U.S. Congress that it makes it difficult for even you folks to 
impact this because you have another--that is going to come up 
with an entirely different opinion. Pardon me speaking with my 
hands, I am Italian. But, that is the basic issue here, and to 
base something without scientific basis is just--it is why I 
referred to it as a fiasco.
    The Chairman. Well, I, of course, agree with that, and I 
mentioned earlier I come from the Northwest, and prior to this 
mega listing, while there are instances around the country, 
most of the big economic impact because of listings was in the 
western part of the United States. There are documented cases 
all over of the school district in Southern California that 
went through as bad as you went through, Representative Pyle. 
But in addition to the Spotted Owl, we have the salmon issue in 
the Northwest. We spent billions, and that is with a B, 
billions of dollars. Ratepayer dollars transferred because the 
utilities are paying for this, plus taxpayers. And I might add, 
just for the record, the salmon return coming back in the 
Columbia River are larger now the last 4 or 5 years than they 
have since we have been keeping records in 1938. There has been 
nary a--anybody speaking about de-listing the fish yet, so 
billions are still going to be spent. And the reason that I 
have had such an interest in this and was so happy to come to 
Pennsylvania, and earlier down in Arkansas, is because now, 
because of this mega listing, the rest of the country is going 
to be--could be potentially as impacted as we are. Now, when I 
started talking to my colleagues earlier and they said, are you 
going to do anything on the Endangered Species Act, I say why 
and then they tell me, and like listings like this. And my 
response to them is I don't take pleasure in this, but welcome 
to the club. Why welcome to the club? Because the only way you 
are going to change is when you have the political will to do 
so. Now, my colleagues here and in Arkansas, and all of the 
Governors of the states I listed are going to tell their people 
get some common sense into the Endangered Species Act.
    So my time is way over. Do any of my colleagues want to 
make any more questions or--if not, I will yield to you for 
your closing statement.
    Mr. Thompson. OK, Chairman, thank you very much. I would be 
remiss if I didn't say a special hello to one of the witnesses 
who are my constituents here today, the gentleman from Centre 
Hall, thanks for being here, Mr. Melville. We greatly 
appreciate it.
    I want to thank someone else that helped really secure this 
facility, Senator Gene Yaw, who has been a good friend, a good 
public servant of Pennsylvania, he went out of his way to make 
arrangements to allow us to be able to have that here today. We 
are very much appreciative to the Pennsylvania Senate and the 
Legislature.
    Chairman, thank you for having this hearing, Mr. Perry, for 
being a part of it. Thanks to the witnesses for being here and 
for all those who took time this morning to attend.
    You know, the Endangered Species Act is important, and, 
quite frankly, I care about the National Long-Eared--Northern 
Long-Eared Bat. Well, it is almost national, I guess. That 
green area, pretty much could claim it. I am glad it wasn't--I 
would soon much have the eagle as our flying symbol versus the 
bat, but it does cover a lot of area.
    You know, this species and any others deserve an Endangered 
Species Act that is effective, that is transparent, that is 
science- and data-based, that avoids unwarranted, unneeded, 
negative consequences. That is not what we have today with the 
Endangered Species Act. You know, these species deserve better. 
You know, there is a requirement to use best available science. 
I have to tell you that because of the lack of transparency by 
the Fish and Wildlife Service, I have no idea whether our Fish 
and Wildlife Service is in compliance with the law. I don't 
know, and we should be able to know and make those--as the 
lawmaking body in this country, we should be able to offer that 
judgment, whether these Federal agencies are working according 
to the Federal law, and the complete lack of transparency 
alarms me because I don't know. I couldn't assure you or my 
constituents, or the citizens of the Nation, that we are--that 
they are following the laws. The Endangered Species Act, you 
know, must be science- and data-directed, not the result of a 
closed-door settlement, and that is where we are at today. And 
I really appreciate the leadership of the Chairman and the 
Natural Resource Committee, and I look forward to continuing 
this work as we have a lot of work to do left in the 113th 
Congress, so thank you and I yield back.
    The Chairman. Thank you.
    Mr. Perry?
    Mr. Perry. Mr. Chairman, Doc, thanks for coming to 
Harrisburg. Thanks very much for allowing me to participate. To 
you folks, thanks for your attendance here today. We are 
looking for solutions, and I would agree with Ms. Matteson, 
especially for the bat who is the--the time is very urgent, I 
am concerned about a Federal Government and an Agency that 
spends much of its resources defending lawsuits, and where 
those resources could be used in combating this White Nose 
Syndrome, and actually getting to the facts so that we can find 
a solution to save the bat, at the same time, continue to live 
our lives and employ people and live well in doing so in 
harmony and in concert with the species around us. The 
Endangered Species Act is vitally important in that regard, and 
we must do everything we can to safeguard it, but also to make 
sure it is effective, and I fear at this point over its time it 
is being used to fulfill the agendas of some folks that can't 
fulfill an agenda through the other means, and that is the 
problem, because we all want to preserve these species, at the 
same time preserve our way of life. And so I think that is what 
this hearing is about, to get to the facts, and I hope that it 
helps us as legislators become more educated on not only the 
bat itself, but the process by which we save all our species in 
the United States, and so we can be more effective at doing so, 
and I appreciate your indulgence and your willingness to stand 
for the tough questions.
    Thank you, Doc.
    The Chairman. Thank you very much, and I want to thank my 
colleagues for talking to me about having this hearing here 
some time ago, and I am glad we finally made it come to an end.
    I just want to make a couple of statements. And I want to 
thank the panel for your testimony. Many times when we have 
panels, there are follow-up questions. If you get a question 
from us, we would ask you to respond in a very timely manner. 
And in that regard, Mr. D'Amico, you said in a larger sense 
that, politically, there is a challenge in Washington, DC. 
Listen, I think anybody, no matter where they live in this 
great country that we have the privilege to live in, would 
acknowledge that the country is somewhat divided politically. 
OK, that is the price of self-government. As difficult as it 
is, that is the price of self-government. And that reflection 
is going to be reflected in the peoples' house that we have the 
privilege to serve in, in the peoples' house. But we have to 
work our way through it. And, yes, there are politics in a lot 
that we do, there is absolutely no question about that, and 
sometimes it doesn't help when the rhetoric on both sides gets 
rather heated. Now, I was asking you about the science. There 
has been a lot of discussion on the science here, and, Ms. 
Matteson, you said that the best available science goes back 
over 40 years, and yet in your press statement, you said 
because the science is clear. Now, does that help the 
discussion, for goodness sake, when you say here in Committee 
that is the best available science, acknowledging it is over 40 
years old, and yet say in a press statement about this meeting 
that the science is clear? That doesn't help trying to find 
solutions to what we are trying to find.
    And let me go one step further. Mr. Perry asked you if the 
CBD had been involved in any restoration or whatever, you 
didn't know because you said you are a scientist, but you do 
work for them, so I am not--well, I won't ask you if you know 
or not, I am asking you to find out and tell us, send to the 
committee what CBD has done as far as restoration. You said 
specifically in the Southwest. I want to know exactly what you 
are doing there. The committee wants to know that. And so you 
get that information to us, and I will ask a further question. 
We heard virtually all of the panelists here talk about the 
White Nose Syndrome. Virtually all of them. I want to know if 
CBD is doing any research on trying to eradicate that. So I am 
asking you to give us that information, not that we would like 
to have it, I want to know because you work for CBD, get it to 
us.
    And so if there are any further questions to any of you, 
that would be the same tone we would ask you; get the 
information to us.
    Once again, I want to thank the panelists for being here. 
And for those of you in the audience, if you would like to 
comment, you can go to our Web site, or there are sheets back 
here that you can add. I think we will have--generally, we have 
10 days after these hearings to get comments in place.
    So if there is no further business to come before the 
committee, the committee stands adjourned.
    [Whereupon, at 11:52 a.m., the committee was adjourned.]

            [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

                            Juniata Valley Audubon,
                                           Tyrone, PA 16686
Hon. Glenn Thompson,
U.S. House of Representatives,
Washington, DC.

    Dear Congressman Thompson:

    Juniata Valley Audubon, a regional conservation organization with 
more than 500 members in south-central Pennsylvania, strongly supports 
the proposal to list the northern long-eared bat as endangered under 
the Endangered Species Act.

    White-nose syndrome has killed an estimated 5.5 million cave-
hibernating bats in the Northeast, Southeast, Midwest and Canada. 
Populations of the northern long-eared bat in the Northeast have 
declined by 99 percent since symptoms of white-nose syndrome were first 
observed in 2006.

    Before the emergence of white-nose syndrome, the northern long-
eared bat was found in 39 states, including the District of Columbia, 
with higher abundance in the East and becoming increasingly rare moving 
west. Other threats to the species include wind energy development, 
habitat destruction or disturbance to hibernating and summer habitat, 
climate change, and contaminants.

    Under the Endangered Species Act, an endangered plant or animal is 
one that is in danger of becoming extinct. This is certainly the case 
with the northern long-eared bat. If a final decision is made to list 
the northern long-eared bat, the species will be protected from take--
harming, harassing, killing--and federal agencies will work to conserve 
the bat and its habitat as they fund, authorize or carry out 
activities. In addition, a recovery plan should be developed for the 
species.

            Sincerely,

                                         Stan Kotala, M.D.,
                                                Conservation Chair.

                                 ______
                                 

                                     

         Pennsylvania's 154th Legislative District,

                                                 September 5, 2014.

Hon. Doc Hastings, Chairman,
House Committee on Natural Resources,
Washington, DC 20515.

Hon. Peter DeFazio, Ranking Member,
House Committee on Natural Resources,
Washington, DC 20515.

    Dear Chairman Hastings and Ranking Member DeFazio:

    The House Natural Resources Committee will be holding a field 
hearing at the Pennsylvania State Capitol Complex on Sept. 8 regarding 
the proposed listing of northern long-eared bats under the federal 
Endangered Species Act. While it appears that there will be at least 
one scientist present at this hearing testifying in support of the 
protection of the species, I am concerned that the other witnesses will 
not provide an accurate portrayal of how Pennsylvanians feel about the 
protection of our natural heritage, both inside Pennsylvania and across 
the United States. As a member of the Pennsylvania General Assembly, I 
am writing to you today requesting that this letter become part of the 
official record of this hearing.

    Pennsylvania has a proud and long tradition of protecting 
endangered species. In 1982 Pennsylvania passed the Wild Resources 
Conservation Act--our own state-level endangered species legislation--
setting up a system of legal protections for rare and endangered 
species within Pennsylvania. This law protects species that are rare 
and declining in Pennsylvania even if those species are common 
elsewhere. Currently more than 75 animals and 600 plants are protected 
under Pennsylvania law, as well as 15 species within Pennsylvania that 
are protected by the Endangered Species Act.

    The strength of both our Pennsylvania law and the federal 
Endangered Species Act has come from their requirements that decisions 
on whether to protect a species is based solely upon the best available 
science. Whether or not a species is in fact endangered is a purely 
scientific question--and it has been the judgment of both the people of 
Pennsylvania and the nation that when a species is endangered, we have 
a moral obligation to prevent its extinction. But once a species is 
protected, there are alternatives and options regarding how to conserve 
those species in ways that minimize the economic impacts that the 
conservation activities have on our local and regional economies. In 
fact, both Pennsylvania law and the Endangered Species Act contain 
numerous provisions that provide flexibility and options to private 
parties to minimize any burdens that they may experience in helping to 
conserve our natural heritage.

    In the past two years, Pennsylvania's Wild Resources Conservation 
Act has come under heavy attack. House Bill 1576, introduced by Rep. 
Jeff Pyle, sought to gut the Act by ending protections for species 
already protected under Pennsylvania law, turning over listing 
authority to the Independent Regulatory Review Commission, and 
requiring that all information on endangered species be placed in a 
centralized database that disclosed geographic information on species' 
locations. This bill is unnecessary and, if passed, would pose a 
tremendous threat to Pennsylvania's natural heritage. The U.S. Fish and 
Wildlife Service was so concerned about the passage of this bill that 
it wrote a letter on Aug. 9, 2013 indicating that passage of this 
legislation would jeopardize Pennsylvania's Pittman-Robertson Wildlife 
Restoration funding.

    Industry special interests may believe that H.B. 1576 would benefit 
them by reducing their environmental stewardship responsibilities. 
However, reducing protections for endangered species is not a core 
value of Pennsylvanians, who understand that protecting imperiled 
plants and animals and the habitats we share with them is key not only 
to preserving the long-term health of the environment, but also to 
protecting the nation's long-term economic security.

    I am concerned that Monday's hearing on the northern long-eared bat 
furthers the false dichotomy imbedded in H.B. 1576 that protecting 
endangered species comes at an unbearable economic price for our state 
and our nation. The reality is that Pennsylvania has a long track 
record of helping to prevent the extinction of the Indiana bat, which 
has been protected under the Endangered Species Act since 1967. There 
is simply no factual reason to believe that protecting the northern 
long-eared bat under the Endangered Species Act will be any different 
from protecting the Indiana bat. If the best available scientific 
information from our nation's top wildlife experts indicates that the 
bat should be protected, then we should all support that decision and 
move forward together in a constructive fashion to recover this species 
to the best of our collective ability.

            Sincerely,

                                            Steve McCarter,

                                              State Representative.

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