[Federal Register Volume 81, Number 81 (Wednesday, April 27, 2016)]
[Rules and Regulations]
[Pages 24707-24714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09673]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2016-0052; 4500030113]
RIN 1018-AZ62


Endangered and Threatened Wildlife and Plants; Determination That 
Designation of Critical Habitat Is Not Prudent for the Northern Long-
Eared Bat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Critical habitat determination.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
reconsidered whether designating critical habitat for the northern 
long-eared bat (Myotis septentrionalis) is prudent. We have determined 
that such a designation is not prudent. We listed the northern long-
eared bat as a threatened species under the Endangered Species Act of 
1973, as amended (Act), on April 2, 2015. At the time the species was 
listed, we determined that designation of critical habitat was prudent, 
but not determinable. Since that time, information has come available 
that demonstrates that designating the wintering habitat as critical 
habitat for the bat would likely increase the threat from vandalism and 
disturbance, and could, potentially, increase the spread of white-nose 
syndrome. In addition, designating the summer habitat as critical 
habitat would not be beneficial to the species, because there are no 
areas within the summer habitat that meet the definition of critical 
habitat. Thus, we have determined that the designation of critical 
habitat is not prudent for the northern long-eared bat.

DATES: The determination announced in this document was made on April 
27, 2016.

[[Page 24708]]


ADDRESSES: This document is available on the Internet at http://www.regulations.gov at Docket No. FWS-R3-ES-2016-0052. Supporting 
documentation we used in preparing this document will be available for 
public inspection, by appointment, during normal business hours at the 
Twin Cities Ecological Services Office, U.S. Fish and Wildlife Service, 
4101 American Blvd. E., Bloomington, MN 55425.

FOR FURTHER INFORMATION CONTACT: Peter Fasbender, Field Supervisor, 
952-252-0092, extension 210. Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    The northern long-eared bat (Myotis septentrionalis) is a wide-
ranging species that is found in a variety of forested habitats in 
summer and hibernates in caves and mines (or habitat with similar 
conditions to suitable caves or mines) in winter. The fungal disease, 
white-nose syndrome (WNS), is the main threat to this species and has 
caused a precipitous decline in bat numbers (in many cases, 90-100 
percent) where the disease has occurred. Declines in the numbers of 
northern long-eared bats are expected to continue as WNS extends across 
the species' range, provided no cure to the disease is found. For more 
information on the northern long-eared bat, its habitat, and WNS, 
please refer to the October 2, 2013, proposed listing (78 FR 61046) and 
the April 2, 2015, final listing (80 FR 17974) rules.

Summer Habitat

    Suitable summer habitat for the northern long-eared bat consists of 
a wide variety of forested and wooded habitats where they roost, 
forage, and travel (Foster and Kurta 1999, p. 668), and may also 
include some adjacent and interspersed non-forested habitats (Yates and 
Muzika 2006, p. 1,245). This includes forests and woodlots containing 
potential roosts, as well as linear features such as fence rows, 
riparian forests, and other wooded corridors. These wooded areas may be 
dense or loose aggregates of trees with variable amounts of canopy 
closure (Lacki and Schwierjohann 2001, p. 487; Perry and Thill 2007, p. 
223; Sasse and Pekins 1996, p. 95; Timpone et al. 2010, p. 118).
    After hibernation ends in late March or early April (as late as May 
in some northern areas), most northern long-eared bats migrate to 
summer roosts. The spring migration period typically runs from mid-
March to mid-May (Caire et al. 1979, p. 405; Easterla 1968, p. 770; 
Whitaker and Mumford 2009, p. 207). The northern long-eared bat is not 
considered to be a long-distance migrant (typically 40-50 miles (64-80 
kilometers)). Males and non-reproductive females may summer near or in 
their winter habitat (hibernacula), or migrate to summer habitat some 
distance from their hibernaculum.
    After emerging from hibernacula in the spring, female northern 
long-eared bats actively form colonies in the summer (Foster and Kurta 
1999) and exhibit fission-fusion behavior (Garroway and Broders 2007), 
where members frequently coalesce to form a group, but composition of 
the group is in flux (Barclay and Kurta 2007, p. 44). As part of this 
behavior, northern long-eared bats switch tree roosts often (Sasse and 
Pekins 1996, p. 95), typically every 2 to 3 days (Foster and Kurta 
1999, p. 665; Owen et al. 2002, p. 2; Carter and Feldhamer 2005, p. 
261; Timpone et al. 2010, p. 119). Northern long-eared bat maternity 
colonies range widely in size (reported range of 7 to 100; Owen et al. 
2002, p. 2; Whitaker and Mumford 2009, p. 212), although colonies of 
30-60 individuals may be most common, at least prior to the onset of 
WNS (Whitaker and Mumford 2009, p. 212; Caceres and Barclay 2000, p. 3; 
Service 2014, p. A16).
    Northern long-eared bats show interannual fidelity to roost trees 
and maternity areas. They use networks of roost trees often centered 
around one or more central-node roost trees (Johnson et al. 2011, p. 
228) with multiple alternate roost trees. Northern long-eared bats 
roost in cavities, crevices, hollows, or underneath bark of both live 
and dead trees and snags (typically >=3 inches (in) (8 centimeters 
(cm)) in diameter at breast height (dbh)). Northern long-eared bats are 
known to use a wide variety of roost types, using tree species based on 
presence of cavities or crevices or presence of peeling bark. Northern 
long-eared bats have also been found roosting in structures such as 
buildings, barns, sheds, houses, and bridges (Benedict and Howell 2008, 
p. 5; Krochmal and Sparks 2007, p. 650; Timpone et al. 2010, p. 119; 
Service 2014, p. 2).
    The best available information indicates that northern long-eared 
bats seem to be flexible in roost selection, using varying roost tree 
species and types of roosts throughout their range. They do not depend 
on certain species of trees for roosts; rather, they opportunistically 
use many tree species that form suitable cavities or retain bark 
(Foster and Kurta 1999, p. 668). Additionally, the bats may use either 
live trees or snags; the use of live trees versus snags may reflect the 
availability of such structures (Perry and Thill 2007, p. 224) and the 
presence of sympatric bat species (e.g., Indiana bat (Myotis sodalis)) 
(Timpone et al. 2010, p. 120), as opposed to a specific preference of 
tree or other habitat characteristics. Results from studies have also 
found that the diameters of roost trees selected by northern long-eared 
bats vary greatly (Sasse and Pekins 1996, pp. 95-96; Schultes 2002, pp. 
49, 51; Perry 2014, pers. comm.; Lereculeur 2013, pp. 52-54; Carter and 
Feldhamer 2005, p. 263; Foster and Kurta 1999, p. 663; Lacki and 
Schwierjohann 2001, pp. 484-485; Owens et al. 2002, p. 3; Timpone et 
al. 2010, p. 118; Lowe 2012, p. 61; Perry and Thill 2007, p. 223; Lacki 
et al. 2009, p. 1,171) and that northern long-eared bats can forage in 
a variety of forest types (Brack and Whitaker 2001, p. 207; LaVal et 
al. 1977, p. 594; van Zyll de Jong 1985, p. 94). Northern long-eared 
bats change roost trees frequently (e.g., Cryan et al. 2001, p. 50; 
Foster and Kurta 1999, p. 665) within their summer home range; this 
behavior suggests they are adapted to responding quickly to changes in 
roost availability and ephemeral roosts. For a more detailed discussion 
on summer habitat, refer to the April 2, 2015, final listing rule (80 
FR 17974).

Winter Habitat (Hibernacula)

    Northern long-eared bats hibernate during the winter months to 
conserve energy from increased thermoregulatory demands and reduced 
food resources (Thomas et al. 1990, p. 475; Thomas and Geiser 1997, p. 
585; Bouma et al. 2010, p. 623). Suitable winter habitat includes caves 
and cave-like structures (e.g., abandoned or active mines, railroad 
tunnels) (Service 2015, unpublished data; Goehring 1954, p. 435; Kurta 
et al. 1997, p. 478). Other landscape features may be used by northern 
long-eared bats during the winter, but they have yet to be documented. 
Generally, northern long-eared bats hibernate from October to April, 
depending on the local climate (November/December through March in 
southern areas, with emergence as late as mid-May in some northern 
areas) (Caire et al. 1979, p. 405; Whitaker and Hamilton 1998, p. 100; 
Amelon and Burhans 2006, p. 72).
    Hibernacula used by northern long-eared bats vary in size (Raesly 
and Gates 1987, p. 20; Kurta 2013, in litt.), and these hibernacula 
have relatively constant, cooler temperatures (0 to 9 degrees Celsius 
([deg]C) (32 to 48 degrees

[[Page 24709]]

Fahrenheit ([deg]F)) (Raesly and Gates 1987, p. 18; Caceres and Pybus 
1997, p. 2; Brack 2007, p. 744), with high humidity and minimal air 
currents (Fitch and Shump 1979, p. 2; van Zyll de Jong 1985, p. 94; 
Raesly and Gates 1987, p. 118; Caceres and Pybus 1997, p. 2). The sites 
favored by northern long-eared bats are often in very high humidity 
areas, to such a large degree that droplets of water are often observed 
on their fur (Hitchcock 1949, p. 52; Barbour and Davis 1969, p. 77). 
Within hibernacula, northern long-eared bats are typically found 
roosting in small crevices or cracks in cave or mine walls or ceilings, 
sometimes with only the nose and ears visible (Griffin 1940, pp. 181-
182; Barbour and Davis 1969, p. 77; Caire et al. 1979, p. 405; van Zyll 
de Jong 1985, p. 9; Caceres and Pybus 1997, p. 2; Whitaker and Mumford 
2009, pp. 209-210).
    To a lesser extent, northern long-eared bats have also been 
observed overwintering in other types of habitat that resemble cave or 
mine hibernacula, including abandoned railroad tunnels (Service 2015, 
unpublished data). Although similar bat species (e.g., big brown bats 
(Eptesicus fuscus)) have been found using non-cave or non-mine 
hibernacula, including attics and hollow trees (Neubaum et al. 2006, p. 
473; Whitaker and Gummer 1992, pp. 313-316), northern long-eared bats 
have only been observed overwintering in suitable caves, mines, or 
habitat with the same types of conditions found in suitable caves or 
mines.
    Northern long-eared bats tend to roost singly or in small groups 
(Service 2013, unpublished data), with hibernating population sizes 
rarely recorded in concentrations of more than 100 bats in a single 
hibernaculum (Barbour and Davis 1969, p. 77). Northern long-eared bats 
display more winter activity than other cave species, with individuals 
occasionally moving between hibernacula throughout the winter (Griffin 
1940, p. 185; Whitaker and Rissler 1992, p. 131; Caceres and Barclay 
2000, pp. 2-3). Northern long-eared bats have shown a high degree of 
philopatry (i.e., using the same site multiple years) to the 
hibernacula used (Pearson 1962, p. 30).
    Northern long-eared bat hibernacula have fairly specific physical 
and biological requirements that make them suitable for northern long-
eared bats. In general, bats select hibernacula because they have 
characteristics that allow the bats to meet specific life-cycle 
requirements. Factors influencing a hibernaculum's suitability include 
its physical structure (e.g., openings, interior space, depth), air 
circulation, temperature profile, and location relative to foraging 
sites (Tuttle and Stevenson 1978, pp. 108-121). For a more detailed 
discussion on winter habitat, refer to the April 2, 2015, final listing 
rule (80 FR 17974).

Previous Federal Actions

    Refer to the proposed (78 FR 61046; October 2, 2013) and final (80 
FR 17974; April 2, 2015) listing rules for the northern long-eared bat 
for a detailed description of previous Federal actions concerning this 
species. On April 2, 2015, we published in the Federal Register (80 FR 
17974) a final rule listing the northern long-eared bat as a threatened 
species. In the April 2, 2015, rule, we also established an interim 
rule under section 4(d) of the Act (16 U.S.C. 1531 et seq.). The final 
listing rule and the interim 4(d) rule both became effective on May 4, 
2015. On January 14, 2016 (81 FR 1900), we published a final 4(d) rule, 
which became effective on February 16, 2016.

Critical Habitat

Background

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, we designate critical habitat at the time the 
species is determined to be an endangered or threatened species. 
Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 defines the geographical area 
occupied by the species as: An area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use, 
and the use of, all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Critical habitat designation does not allow 
the government or public to access private lands, nor does it require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the Federal agency would be required to consult 
under section 7(a)(2) of the Act, but even if consultation leads to a 
finding that the action would likely cause destruction or adverse 
modification of critical habitat, the resulting obligation of the 
Federal action agency and the landowner is not to restore or recover 
the species, but rather to implement reasonable and prudent 
alternatives to avoid destruction or adverse modification of critical 
habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features, we focus

[[Page 24710]]

on the specific features that support the life-history needs of the 
species, including but not limited to, water characteristics, soil 
type, geological features, prey, vegetation, symbiotic species, or 
other features. A feature may be a single habitat characteristic, or a 
more complex combination of habitat characteristics. Features may 
include habitat characteristics that support ephemeral or dynamic 
habitat conditions. Features may also be expressed in terms relating to 
principles of conservation biology, such as patch size, distribution 
distances, and connectivity.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed if we determine 
that such areas are essential for the conservation of the species. For 
example, an area that is currently occupied by the species, but was not 
occupied at the time of listing, may be essential to the conservation 
of the species and may be included in the critical habitat designation.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. For example, they 
require our biologists, to the extent consistent with the Act and with 
the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.

Critical Habitat Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, we designate critical habitat at the time the 
species is determined to be an endangered or threatened species. Our 
regulations (50 CFR 424.12(a)(1)) state that the designation of 
critical habitat is not prudent when any of the following situations 
exist: (i) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species, or (ii) such designation of critical 
habitat would not be beneficial to the species. The regulations also 
provide that, in determining whether a designation of critical habitat 
would not be beneficial to the species, the factors the Services may 
consider include but are not limited to: Whether the present or 
threatened destruction, modification, or curtailment of a species' 
habitat or range is not a threat to the species, or whether any areas 
meet the definition of ``critical habitat'' (50 CFR 424.12(a)(1)(ii)).
    We have determined that both situations when a critical habitat 
designation would not be prudent apply to the northern long-eared bat. 
With respect to summer habitat, we have determined that designating 
critical habitat would not be beneficial to the species. Further, with 
respect to wintering habitat, we have determined that the species is 
threatened by taking or human activity and identification of critical 
habitat could be expected to increase the degree of this threat to the 
species. An explanation of these determinations follows.
Designating Summer Habitat Would Not Be Beneficial to the Species
    The northern long-eared bat is widely distributed throughout much 
of its range during the summer months and is considered to be flexible 
with regards to summer habitat requirements.
    The best scientific information available on summer habitat 
suggests that where the northern long-eared bat is found, it is widely 
distributed in a variety of wooded habitats (ranging from highly 
fragmented forest habitats to contiguous forest blocks from the 
southern United States to Canada's Yukon Territory), with generally 
non-specific habitat elements. There are elements of summer habitat 
that the northern long-eared bat needs (forests for roosting, raising 
young, foraging, and commuting between roosting and foraging habitat); 
however, the best available information indicates that the species' 
specific needs and preferences for these habitat elements are 
relatively flexible, plentiful, and widely distributed. Thus, summer 
habitat for the northern long-eared bat does not have specific physical 
or biological features that are essential to the conservation of the 
species and, therefore, does not meet the definition of critical 
habitat.
    Furthermore, as discussed in the final listing rule (80 FR 17974; 
April 2, 2015), northern long-eared bat summer habitat is not limited 
or in short supply, and summer habitat loss is not a rangewide threat 
to the species. Based on a compilation of the total forested acres for 
each State in the northern long-eared bat's range (from the U.S. Forest 
Service's 2015 State and Private Forestry Fact sheets (available at 
http://stateforesters.org/regional-state)), there are an estimated 
281,528,709 acres (113,213,960 hectares) of available forested habitat 
for the northern long-eared bat throughout its range in the United 
States (Service 2016, p. 28). This is assuming that all forested acres 
are suitable for the northern long-eared bat, which probably 
overestimates habitat availability, but such an assumption is not 
unreasonable given the northern long-eared bat's flexible selection of 
summer habitat and ability to use very small trees (>=3 in (8 cm) in 
dbh) (Service 2016, p. 18).
    As we documented in the final listing rule (80 FR 17974; April 2, 
2015), the extent of conversion from forest to other land cover types 
has been fairly consistent with conversion to forest (cropland 
reversion/plantings). Further, the recent past and projected future 
amounts of forest loss to conversion was, and is anticipated to be, 
only a small percentage of the total amount of forest habitat. For 
example, the U.S. Forest Service expects only 4 to 8 percent of the 
forested area found in 2007 across the conterminous United States to be 
lost by 2060 (U.S. Forest Service 2012, p. 12). Additionally, as 
discussed above, the northern long-eared bat has been documented to use 
a wide variety of forest types across its wide range (living in highly 
fragmented forest habitats to contiguous forest blocks from the 
southern United States to Canada's Yukon Territory). Because summer 
habitat for the northern long-eared bat is not limiting, and because 
the northern long-eared bat is considered to be flexible with regards 
to summer habitat, the availability of forested habitat does not now, 
nor will it likely in the future, limit the conservation of the 
northern long-eared bat.
    The critical habitat regulations at 50 CFR 424.12(a)(1)(ii) provide 
two examples of when designating critical habitat may not be beneficial 
to the species and, therefore, may be not prudent: Where the present or 
threatened destruction, modification, or curtailment of a species' 
habitat or range is not a threat to the species, or where there are no 
areas that meet the definition of critical habitat for the species. The 
summer habitat for the northern long-eared bat falls within both 
examples. First, there are no areas of summer habitat that meet the 
definition of critical habitat for the northern long-eared bat. Second, 
the present or

[[Page 24711]]

threatened destruction, modification, or curtailment of summer habitat 
is not a threat to the species; rather, disease is the primary threat 
to the species within its summer habitat. In the final rule revising 
the critical habitat regulations (81 FR 7414; February 11, 2016), the 
Services expressly identified this situation as an example where 
designating critical habitat may not be beneficial to the species: ``In 
some circumstances, a species may be listed because of factors other 
than threats to its habitat or range, such as disease, and the species 
may be a habitat generalist. In such a case, on the basis of the 
existing and revised regulations, it is permissible to determine that 
critical habitat is not beneficial and, therefore, not prudent'' (see 
81 FR 7425; February 11, 2016). Therefore, we conclude that designating 
the summer habitat of the northern long-eared bat as critical habitat 
is not prudent.
Increased Threat to the Taxon by Designating Critical Habitat in Their 
Hibernacula
    Disturbance of hibernating bats (as discussed under Factor A of the 
final listing rule (80 FR 17974, April 2, 2015; see 80 FR 17989-17990)) 
has long been considered a threat to cave-hibernating bat species, 
including the northern long-eared bat. Northern long-eared bats 
hibernate during the winter months to conserve energy from increased 
thermoregulatory demands and reduced food resources. To increase energy 
savings, individuals enter a state of torpor, when internal body 
temperatures approach ambient temperature, metabolic rates are 
significantly lowered, and immune function declines (Thomas et al. 
1990, p. 475; Thomas and Geiser 1997, p. 585; Bouma et al. 2010, p. 
623). Each time a bat arouses from torpor, it uses a significant amount 
of energy to warm its body and increase its metabolic rate. These 
arousals during hibernation cause the greatest amount of energy 
depletion in hibernating bats (Thomas et al. 1990, p. 477). The cost 
and number of arousals are the two key factors that determine energy 
expenditures of hibernating bats in winter (Thomas et al. 1990, p. 
475). Human disturbance at hibernacula can cause bats to arouse more 
frequently, causing premature energy store depletion and starvation 
(Thomas 1995, p. 944; Speakman et al. 1991, p. 1103), leading to marked 
reductions in bat populations (Tuttle 1979, p. 3) and increased 
susceptibility to disease.
    The primary forms of human disturbance to hibernating bats result 
from recreational caving, vandalism, cave commercialization (cave tours 
and other commercial uses of caves), and research-related activities 
(Service 2007, p. 80). Fire building is also a common form of 
disturbance that, in addition to elevating interior temperatures (which 
is detrimental during hibernation) and accumulating smoke, can deposit 
soot on ceilings and eventually result in site abandonment by bats 
(Tigner and Stukel 2003, p. 54). In addition to unintended effects of 
commercial and recreational caving, intentional killing of bats in 
caves by shooting, burning, and clubbing has been documented (Tuttle 
1979, pp. 4, 8). Intentional killing of northern long-eared bats has 
been documented at a small percentage of hibernacula (e.g., one case of 
shooting disturbance in Maryland, and one case of bat torching in 
Massachusetts where approximately 100 bats (northern long-eared bats 
and other species) were killed) (Service, unpublished data).
    Prior to the outbreak of WNS, Amelon and Burhans (2006, p. 73) 
indicated that ``the widespread recreational use of caves and indirect 
or direct disturbance by humans during the hibernation period pose the 
greatest known threat to this species (northern long-eared bat).'' In 
addition, human disturbance at hibernacula has been identified by many 
States as the next greatest threat to the bat after WNS. Of 14 States 
that assessed the possibility of human disturbance at bat hibernacula 
within the range of the northern long-eared bat, 13 identified at least 
1 known hibernacula as having been negatively affected by human 
disturbance (Service 2012, unpublished data). Eight of these 14 States 
(Arkansas, Kentucky, Maine, Minnesota, New Hampshire, North Carolina, 
South Carolina, and Vermont) indicated the potential for human 
disturbance at over 50 percent of the known hibernacula in that State. 
Nearly all States without WNS identified human disturbance as the 
primary threat to hibernating bats, and all others (including WNS-
positive States) noted that human disturbance either is of significant 
concern or is the next greatest threat after WNS (Service 2012, 
unpublished data).
    Since the time of listing (April 2, 2015), additional information 
has become available that demonstrates that designating critical 
habitat for the northern long-eared bat would likely increase the 
threat from vandalism and disturbance, and could, potentially, increase 
the spread of WNS. In November 2015, we sought information from State 
fish and wildlife agencies and other public landowners with known bat 
caves or mines to determine: (1) How prevalent accounts of disturbance 
to bats and vandalism to hibernacula are throughout the species' range; 
and (2) the level and types of concerns that State fish and wildlife 
agencies and other landowners with known bat caves or mines have 
regarding the release of known bat hibernacula location information.
    Prevalence of Disturbance--State and other agency or organization 
personnel provided information regarding specific incidents of 
disturbance of hibernating bats within their State or area of 
jurisdiction. Incidents were reported throughout the range of the 
northern long-eared bat. Evidence of vandalism of caves and mines and 
disturbance of bats included: dead bats, graffiti, trash, evidence of 
camp fires, bottle rockets, fireworks, digging or excavation, attempts 
to remove rock or minerals, alteration of cave or mine entrances, and 
damage to and breach of gates. There were also a few reported incidents 
of intentional killing of bats, including clubbing, thrown rocks, and 
burning. In addition, materials found in hibernacula, such as tennis 
rackets and blow torches, indicate harm inflicted on bats (NJDFW 2015, 
pers. comm.). There are few law enforcement reports regarding these 
incidents, either due to a lack of law enforcement actions or because 
reporting these incidents would publicize mine or cave locations (SCDNR 
2015, pers. comm.).
    Examples of incidents of vandalism and disturbance to bats at 
publicly known hibernacula have been found throughout the range of the 
northern long-eared bat; we received examples of vandalism and 
disturbance to bats from 20 State fish and wildlife agencies and 9 
other public landowners (including Federal, State, and local agencies 
and organizations) with known northern long-eared bat hibernacula. Due 
to the large number of specific incidents, a small, representative 
subset of the examples we received is presented below. For purposes of 
illustrating that these incidents occur throughout the species' range, 
the information is organized into four geographic areas: Northeast, 
southeast, midwest, and west.
    Northeast: In northeastern States such as Pennsylvania and New 
York, vandalism and disturbance to bats within hibernacula occurs 
frequently. Evidence of human use of caves and mines in Pennsylvania, 
including digging for new passage, waste, all-terrain-vehicle use, guns 
being shot, and burning, are common. There are also many examples of 
people trying to cut, remove, or get around gates to access gated 
hibernacula (PGFC 2015, pers. comm.). Due to the large numbers of 
people trespassing in Pennsylvania

[[Page 24712]]

caves and mines, especially during winter months while bats are 
hibernating, the Pennsylvania Game Commission installed cameras at many 
caves to capture visual proof of those illegally entering caves and 
send automated messages to alert a wildlife conservation officer of the 
entry. Since January 2015, conservation officers have confronted at 
least 50 suspected trespassers, resulting in more than 20 citations 
(PGFC 2015, pers. comm.). Similarly, in New York, nearly all un-gated 
hibernacula, both on public and private lands, are visited by people, 
and many gated caves and mines have been compromised. Some sites have 
signs informing visitors that caves and mines are closed to visitation 
in the winter; however, this does not stop individuals from accessing 
those sites (NYDEC 2015, pers. comm.).
    Southeast: In southeastern States such as South Carolina, North 
Carolina, and Kentucky, vandalism and disturbance to bats within 
hibernacula occurs often. For example, in South Carolina reports exist 
of bottle rockets being shot into a gated mine, missing locks on bat-
friendly gates, litter inside a cave, and individuals barricading an 
entrance to a cave (SCDNR 2015, pers. comm.). In North Carolina, there 
are multiple incidents of vandalism to caves and mines. One particular 
mine in North Carolina has had repeated vandalism issues over several 
years, and multiple security fences, gates, and locks have been 
compromised by vandalism (NCWRC 2015, pers. comm.). In Kentucky, 82 of 
118 total hibernacula where northern long-eared bats have been observed 
are exposed to human disturbance; in 2007, two people were convicted of 
intentionally killing more than 100 federally-listed Indiana bats in a 
Kentucky cave (USFWS 2010).
    Midwest: There are multiple records of vandalism and disturbance of 
bats in Midwestern States, including Michigan, Indiana, Wisconsin, 
Missouri, and Minnesota. The first mine to have WNS-associated bat 
mortality in Michigan had been illegally accessed in 2013, when people 
used a torch to break the gate. The WNS-associated mortality was 
``likely as a direct result of this disturbance'' (MIDNR 2015, pers. 
comm.). Winter visitation to caves in Indiana is relatively common, and 
in one particular incident, hibernating Indiana bats were intentionally 
burned (INDNR 2015, pers. comm.). In Wisconsin, five State-owned 
underground sites were sealed for use if there was a need for 
artificial hibernacula for WNS treatment trials; all five were breached 
(welded doors were ground off) during the spring of 2015. Additionally, 
one private landowner filled in a cave on their property when they 
learned it was occupied by bats (WDNR 2015, pers. comm.). In Missouri, 
there has been evidence of digging at cave entrances, parties, fires, 
fireworks, graffiti, off-highway vehicle use, gate damage, and trash 
left behind at caves throughout the State. In fact, there is an ongoing 
investigation and prosecution regarding illegal entry at a Missouri 
cave (MDC 2016, pers. comm.). Issues with breached gates and broken 
locks occurred at several Minnesota caves; approximately 4 years ago, 
surveyors found bat bones and shotgun shells in one cave.
    West: In States such as South Dakota, Arkansas, and Oklahoma in the 
western portion of the northern long-eared bat's range, there are 
several records of incidents of vandalism and disturbance to bats as 
well. The South Dakota Department of Game, Fish, and Parks provided 
literature with evidence of both historical and ongoing vandalism at 
their State's hibernacula. Increasing disturbance of known hibernacula 
throughout the Black Hills area is noted as one of the greatest threats 
to bat populations in the area (Tigner and Stukel 2003, p. 11). Some of 
the more disruptive and damaging activities inside caves and abandoned 
mines include discharging firearms and fireworks, spray-painting, 
campfire construction, and intentionally killing bats and other 
wildlife (Tigner and Stukel 2003, p. 54). At one particular cave, 
campfires are common during hibernation, and only a small fraction of 
the bats identified in the cave in the early 1990s still use the cave 
(Tigner 2002, p. 7). In Arkansas, approximately 200 endangered gray 
bats (Myotis grisescens) were killed at a major gray bat hibernaculum 
on National Park Service land (AGFC 2015, pers. comm.). In Oklahoma, 
there have been multiple incidents involving cutting fences around gate 
entrances, breaching cave gates (by cutting, digging under, or removing 
structures around gates to gain access), and campfires near cave 
entrances (Service 2015, pers. comm.).
    Summary: As illustrated by the examples above, which are only a 
small subset of the reported incidents, we have extensive rangewide 
evidence that indicates known northern long-eared bat hibernacula have 
been, and are likely to continue to be, disturbed and vandalized. These 
acts not only lead to increases in disturbance during the northern 
long-eared bat's sensitive hibernation period, which, in turn, leads to 
decreased survival, but also may lead to direct mortality of northern 
long-eared bats.
    Concerns over Release of Location Information--Northern long-eared 
bats that are infected with WNS are believed to be less resilient to 
disturbance and resulting arousal, and the northern long-eared bat is 
one of the most highly susceptible bat species to WNS (Langwig et al. 
2014). As discussed in the final listing rule (80 FR 17974, April 2, 
2015; see 80 FR 17993-17998), WNS-causing fungal spores can be 
transmitted not only by bat-to-bat transmission, but also by human 
actions (USGS National Wildlife Health Center, Wildlife Health Bulletin 
2011-05), and decontamination remains one of the only management 
options available to reduce the risk of human-assisted transmission. 
State, Federal, and local agencies and organizations are especially 
concerned with the spread of WNS if cave and mine locations are made 
public, especially in sites where WNS has not been found or in areas 
that have not yet been inundated with the disease. Several agency and 
organization personnel expressed concern regarding those visiting caves 
and mines and not properly decontaminating after leaving hibernacula, 
which may result in these visitors spreading WNS fungal spores by using 
contaminated gear in uninfected caves or mines (ANHC 2015, pers. comm.; 
CDEEP 2015, pers. comm.; KDFWR 2015, pers. comm.; NBSRP 2015, pers. 
comm.; NJDVW 2015, pers. comm.; WDNR 2015, pers. comm.; WGFD 2015, 
pers. comm.). It is possible that the spread of WNS was enhanced by 
human transfer of fungal spores in some States, such as Connecticut 
(CDEEP 2015, pers. comm.).
    State, Federal, and local agencies that gather specific location 
information exercise extra efforts to protect hibernacula location 
information from becoming readily available to the public. In fact, 
many States reported that they are concerned that release of location 
information could significantly increase human visitation, thereby 
increasing disturbance to bats, and, therefore, they do not share 
hibernacula location information with the public. For example, the 
Wisconsin Department of Natural Resources stated, ``we have not shared 
locational information as to maternity sites and hibernacula. Under 
state law, locations deemed critical to the survival of the species may 
be withheld from the public. All data in the WI Natural Heritage 
Inventory are exempt from State open records laws'' (WDNR 2015, pers. 
comm.). Some agencies and organizations state that when location 
information is disclosed, an agreement typically must be in place with 
those requesting the location

[[Page 24713]]

information to protect the data, and point data are buffered to conceal 
the specific locations. Similarly, in Missouri, the Missouri Department 
of Conservation (MDC) does not release hibernacula locations to the 
general public, and location information for caves not owned by MDC 
cannot be disclosed by the State (MDC 2016, pers. comm.).
    In addition to protecting location information, State, Federal, and 
local agencies and organizations use other means to protect bat 
hibernacula, such as installation of bat-friendly gates. Direct 
protection of caves and mines can be accomplished through installation 
of bat-friendly gates that allow passage of bats while reducing 
disturbance from human entry as well as reducing changes to the cave 
microclimate from air restrictions. Bat-friendly gates are generally 
thought to be effective in preventing disturbance of hibernating bats 
and vandalism of hibernacula (AGFC 2015, pers. comm.; ANF 2015, pers. 
comm.; ANHC 2015, pers. comm.; BNR 2015, pers. comm.; CDEEP 2015, pers. 
comm.; DMCC 2015, pers. comm.; IADNR 2015, pers. comm.; ILDNR 2015, 
pers. comm.; INDNR 2015, pers. comm.; KDFWR 2015, pers. comm.; MANG 
2015, pers. comm.; MDC 2016, pers. comm.; MIDNR 2015, pers. comm.; 
NBSRP 2015, pers. comm.; NGDFW 2015, pers. comm.; NYDEC 2015, pers. 
comm.; ONF 2015, pers. comm.; ONSR 2015, pers. comm.; OSFNF 2015, pers. 
comm.; PGC 2015, pers. comm.; SCDNR 2015, pers. comm.; SDGFP 2015, 
pers. comm.; SMP 2015, pers. comm.; WDNR 2015, pers. comm.), although 
attempts to protect hibernacula from disturbance have varying degrees 
of effectiveness. In most States for which we have information, a small 
percentage of caves and mines are gated, and a majority of State 
agencies indicated that there is a need to gate additional caves and 
mines used by bats. For example, in Missouri, less than approximately 2 
percent of known hibernacula have bat-friendly gates Statewide (MDC 
2015, pers. comm.). Attempts to remove gates at hibernacula are 
numerous and pervasive throughout the northern long-eared bat's range, 
although the success of removal attempts varies. Some State and Federal 
agencies and other organizations state that attempts to remove gates 
are rarely successful; others, such as the Kentucky Department of Fish 
and Wildlife Resources, state that removal attempts are almost always 
successful: ``When parties wish to gain access, they are very 
resourceful and come prepared to cut, dig, pry, or use any other means 
necessary to enter. The remote nature of some sites does not seem to 
deter vandalism either'' (KDFWR 2015, pers. comm.). See Prevalence of 
Disturbance, above, for more examples of attempts to remove gates.
    The process of designating critical habitat would increase human 
threats to the northern long-eared bat by increasing the vulnerability 
of this species to disturbance during its sensitive hibernation period 
and by increasing the likelihood of vandalism to its winter hibernacula 
by publicly disclosing the locations of those hibernacula. Northern 
long-eared bats are particularly sensitive to disturbance while 
hibernating, and such disturbance further reduces survival chances of 
already compromised, WNS-infected bats. Additionally, increased human 
access to hibernacula may facilitate or accelerate the spread of WNS to 
uninfected sites, as people may carry the fungal spores from site to 
site. Designation of critical habitat requires the publication of maps 
and a specific narrative description of critical habitat in the Federal 
Register. The degree of detail in those maps and boundary descriptions 
is far greater than the general location information provided in the 
final listing rule (80 FR 17974; April 2, 2015). Furthermore, a 
critical habitat designation normally results in the news media 
publishing articles in local newspapers and on special interest Web 
sites, usually with maps of the critical habitat. We have determined 
that the publication of maps and descriptions outlining the locations 
of this species' wintering areas would increase awareness and 
visitation of hibernacula, and thus disturbance of bats, as those 
interested in accessing caves and mines would then have detailed 
location information for these hibernacula. As expressed by many State 
bat biologists and land managers with hibernacula within their area of 
jurisdiction, there is a strong concern regarding publicizing cave and 
mine location information due to the increased threat of disturbance to 
the northern long-eared bat, and bats in general. Furthermore, human 
disturbance may exacerbate the effect of WNS on northern long-eared 
bats; providing a literal map of bat hibernacula in the form of 
critical habitat will likely facilitate human disturbance and may 
further compound threats to the species. We, therefore, conclude that 
the northern long-eared bat is threatened by taking and other human 
activity, and identification of critical habitat can be expected to 
increase the degree of threat to the species. Designating critical 
habitat is therefore not prudent under the regulations at 50 CFR 
424.12(a)(1)(i). As discussed earlier, the risk of increased threats 
from publishing hibernacula locations is significant. The northern 
long-eared bat, and bats in general, are very sensitive to disturbance 
while hibernating, and there are numerous known incidents of vandalism, 
targeted killing, and disturbance of hibernating northern long-eared 
bats throughout the species' range. The public has great interest in 
visiting caves and mines for recreational purposes, and human-caused 
disturbance has clear effects on hibernating bats. Thus, any action 
that publicly discloses the location of northern long-eared bat 
hibernacula (such as a critical habitat designation) puts the species 
in further peril. One of the basic measures to protect northern long-
eared bats from vandalism and disturbance while hibernating is 
restricting access to information pertaining to the location of the 
species' hibernacula. Publishing maps and narrative descriptions of 
northern long-eared bat critical habitat would significantly affect our 
ability to reduce the threat of vandalism and disturbance of 
hibernacula and hibernating bats and may facilitate or intensify the 
spread of WNS by humans.
Summary of Prudency Determination
    We have determined that designating critical habitat for the 
northern long-eared bat is not prudent. Designating summer habitat as 
critical habitat is not beneficial to the species, because there are no 
areas within the summer habitat of the species that meet the definition 
of critical habitat. Further, the primary threat to the species is the 
disease WNS; the destruction, modification, or curtailment of summer 
habitat is not a threat to the species as suitable summer habitat 
continues to exist and is not limited throughout the species' range. 
Therefore, designating critical habitat in the summer habitat areas 
would not be beneficial. Moreover, designating winter habitat as 
critical habitat would disclose hibernacula location information, and 
thereby increase the threat to the northern long-eared bat from 
vandalism and disturbance at hibernacula and could, potentially, 
increase the spread of WNS. Disturbance of hibernating bats has long 
been considered a threat to cave-hibernating bat species, and has been 
identified as the next greatest threat to this taxon after WNS. Human 
disturbance at hibernacula causes bats to arouse more frequently, 
leading to premature energy store depletion and, possibly, starvation. 
Further compounding the effects of disturbance, northern long-eared 
bats that are

[[Page 24714]]

infected with WNS are believed to be less resilient to disturbance and 
resulting arousal. Furthermore, increased human visitation of 
hibernacula could intensify the spread of WNS from infected to 
uninfected sites. We have, therefore, determined in accordance with 50 
CFR 424.12(a)(1) that it is not prudent to designate critical habitat 
for the northern long-eared bat.

References Cited

    A complete list of references cited in this document is available 
on the Internet at http://www.regulations.gov and upon request from the 
Twin Cities Ecological Services Office (see ADDRESSES and FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this document are the staff members of the 
Twin Cities Ecological Services Office.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: April 12, 2016.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-09673 Filed 4-26-16; 8:45 am]
BILLING CODE 4333-15-P