WASHINGTON, Jan. 20, 2016 - Farmers who engage in legal use of pesticides cannot be found liable for harming northern long-eared bats, which have been listed as threatened under the Endangered Species Act.

The Fish and Wildlife Service put the bat on the list nearly a year ago but just finalized a “4(d) rule,” so called for the section of the ESA that allows the service to tailor conservation measures for specific threatened species.

In the rule, published Jan. 14 in the Federal Register, FWS said it was not necessary to grant farm groups’ request to exempt everyday farming activities from the ESA’s prohibition against species “take” – which includes harm and harassment, among other things.

The final rule applies prohibitions on activities “where necessary and advisable for conservation of the species. Therefore, agricultural development and operations do not need to be specifically ‘excepted,’” the service said in its final rule.

But FWS also explicitly said that lawful pesticide use would not trigger the prohibitions in the law against “incidental take” of listed species. CropLife America, Responsible Industry for a Sound Environment and the American Farm Bureau Federation all had asked FWS for the clarification.

The biggest threat faced by the northern long-eared bat is white-nose syndrome (WNS), a fungal disease that has decimated bat populations throughout the United States. In its rule, FWS prohibits the taking of any northern long-eared bats within WNS zones, defined as counties in the bat’s range that are within 150 miles of the boundaries of U.S. counties or Canadian districts where the fungus Pseudogymnoascus destructans (Pd) or (white-nose syndrome) has been detected.

FWS said it is “unclear whether environmental contaminants, regardless of the source (e.g., pesticide applications, industrial wastewater) would be expected to cause population-level impacts to the northern long-eared bat either independently or in concert with WNS.”

Despite that lack of knowledge, the service said it “recognized the potential for direct and indirect consequences. However, contaminant-related mortality has not been reported for northern long-eared bats.”

The bat’s range includes 38 states, mostly east of the Mississippi River, but also Minnesota, Iowa, Missouri, Arkansas, Louisiana, Oklahoma, Kansas and Nebraska.

The Center for Biological Diversity said the rule goes too easy on activities in the bat’s range. “The rule allows logging and land-clearing to occur anywhere other than within 150 feet of where the bats are known to summer — called a roost tree — or within a quarter-mile of a known hibernacula, where the bats hibernate. This means most forestry, pesticide use, oil, gas and wind energy developments, pipelines and any other land-clearing can proceed. Such activities are normally prohibited under the (Endangered Species) Act,” CBD said.

Although continuing to review the details of the rule, CropLife America (CLA) said it was “pleased that FWS recognized that the lawful application of pesticides do not pose a threat to the northern long-eared bat. Crop protection products are important tools for America’s farmers and ranchers and, when applied according to label directions, pose only minimal concerns to wildlife and the environment. The recent FWS 4(d) rule reflects the strong regulation in place under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).”


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