Last week the US Department of Agriculture's Natural Resource Conservation Service (NRCS) announced any NRCS-funded projects where tree cutting (trees > 3" in diameter) occurs (e.g. habitat management, timber stand improvement, early successional habitat creation, trail and log landing improvements, food plot installation, etc.) are suspended from April 15 until August 15.

This week NRCS revised the dates for the suspension of NRCS-funded projects to June 1 through July 31. Even with the reduction in the timber cutting moratorium time period, NRCS's decision to keep it a statewide moratorium remains problematic and is still much more restrictive than the U.S. Fish and Wildlife Service's (FWS) rules.

NRCS's decision will impact hundreds of landowners and loggers who participate in these programs to perform forest stewardship and wildlife habitat work on their properties. Although the NRCS is a federal agency, it is still not clear why they are deciding to be more restrictive than the FWS rules. 

The New Hampshire Timberland Owners Association (NHTOA) continues to urge its members to provide comments to the FWS on the proposed rule and contact the N.H. Congressional Delegation to urge NRCS to allow these programs to continue this summer. The following is background information on the FWS rule and how you can participate in the rule process and contact the N.H. Congressional Delegation.

Background
Back in April, the FWS listed the Northern Long Ear Bat (NLEB) as a threatened species under the federal Endangered Species Act (ESA). Its population is down due to a fungal disease, called white nose syndrome, the bat contracts while hibernating. This species of bat hibernates in caves during the winter and roosts in trees during the summer. June and July are particularly sensitive months, as the mother bats and their pups roost in trees. To allow certain land management activities to continue, the FWS adopted a temporary "4(d) rule". This rule, which the ESA allows to accompany a threatened listing, is open for comment until July 1. Also worth noting, a national group, the Center for Biological Diversity, is challenging this rule in D.C. District court - it is not clear what impact this legal challenge may have on the final rule.

A 4(d) rule is designed to determine how activities may be conducted without being considered a prohibited "take" under the ESA. Here, this rule would conclude that timber harvesting beyond a quarter-mile of a hibernacula or known roost trees would not be considered a "take" of any bats. (There are 13 long ear bat hibernacula in New Hampshire; follow this link to a list of NH towns with known hibernacula, but please consult the Natural Heritage Bureau for the most recent information. There are two known roost trees in NH for the long ear bat.) Within the quarter-mile zone, a "take" could occur unless certain restrictions are followed. The link at the bottom of this article has more details on how the 4(d) rule will regulate timber harvesting. The concern is with what is considered "known" under the regulation. Because these bats can roost in any tree larger than three inches in diameter, and the FWS has designated the entire state of New Hampshire has a northern long ear bat bugger zone, almost any tree in the state could have a bat in it. One recommendation is to have landowners contact the FWS before doing any tree cutting on their property to protect themselves. If land managers follow this rule, they will protect themselves from being liable for a "take" (i.e., killing, harassing, or injuring a long ear bat). If private, state, or federal landowners don't follow the rule and a bat is taken, the landowner could face severe penalties.  

Unfortunately, the FWS has not been clear on how to work with the 4(d) rule. To make matters worse, other Federal agencies are interpreting the 4(d) rule in different ways. This is creating a lot of confusion. NRCS in particular is taking an unnecessarily restrictive approach. All NRCS-funded projects where tree cutting occurs (e.g., habitat management, timber stand improvement, early successional habitat creation, trail and log landing improvements, food plot installation, etc.) are suspended from June 1 to July 31. This will impact 200 landowners across the state and 500 practices. Ironically, the very programs designed to help improve land stewardship and wildlife habitat are being hung up because of a species health problem that has nothing to do with timber cutting. In addition, FWS, in the preamble to its rule, recognized forest management as a key to the conservation of this bat species, yet NRCS has stopped all forest management from taking place.

 

Call to Action
The NHTOA urges you to contact the NH Congressional Delegation to make them aware of this problem. In addition, you are strongly encouraged to urge FWS and the NRCS to allow more reasonable forest and wildlife management to occur.

 Here are the three talking points:

1. The 4(d) rule needs to exempt forestry and wildlife habitat management.
 

2. The USDA (NRCS in particular) needs to get its act together and not exceed the FWS rules.
 

3. FWS has the authority to work with landowners under the Endangered Species Act and instead has created total confusion. They need to do a better job at being clearer and more consistent with landowners, land managers, state regulators, and other federal agencies.

Here are the contacts for the NH Congressional Delegation:

US Senator Jeanne Shaheen

Washington D.C. Office
506 Hart SOB
Washington, D.C. 20510
Phone: (202) 224-2841
www.shaheen.senate.gov/contact/
 
US Senator Kelly Ayotte
Washington D.C. Office
144 Russell Senate Office Building
Washington, D.C. 20510
Phone: 202-224-3324
www.ayotte.senate.gov/?p=contact

US Congresswoman Anne McLane Kuster
Washington D.C. Office
137 Cannon House Office Building
Washington, DC 20515
Phone: (202) 225-5206
kuster.house.gov/contact/email-me

US Congressman Frank Guinta
Washington D.C. Office
326 Cannon House Office Building
Washington, DC 20515
Phone: (202) 225-5456
guinta.house.gov/contact

Here are the FWS links to the 4(d) rule and the portal to the 4(d) comment page

NLEB 4(d) rule decision matrix for land owners:

www.fws.gov/midwest/endangered/mammals/nleb/pdf/KeyInterim4dRuleRevised2April2015.pdf

General NLEB information and portal to provide comments on the 4(d) rule: