1. Endangered Species Act Update: Bats and Crayfish Allyn G. Turner Steptoe & Johnson, PLLC January 28, 2016 1

2. Key Federal Wildlife Laws Endangered Species Act – 16 U.S.C. §§1531-44, enacted 1973. Migratory Bird Treaty Act – 16 U.S.C. §§701-12, enacted 1918. Bald and Golden Eagle Protection Act – 16 U.S.C. §§668-668d, enacted 1940 (bald eagle), 1972 (expanded to include golden eagle). Marine Mammal Protection Act – 16 U.S.C. §§1361-1421h, enacted 1972. Magnuson-Stevens Fishery Conservation and Management Act – 16 U.S.C. §§1801-84, enacted 1976. 2

3. Endangered Species Act Endangered: In danger of extinction through all or a significant portion of its range Threatened: Likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range Critical Habitat: Specific areas within area occupied by species when listed with physical and biological features essential to conservation Take: “Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. §1532(19) Harm: “An act which actually kills or injures wildlife. Such act may include significant habitat degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” 50 C.F.R. §17.3 Babbitt v. Sweet Home, 515 U.S. 687 (1995) 3

4. Listing Factors 4 Factor A – destruction, modification or curtailment of habitat or range Factor B - overutilization for commercial, recreational, scientific or educational purposes Factor C – disease or predation Factor D - inadequacy of existing regulatory mechanisms Factor E - manmade and natural factors affecting continued existence (e.g., global warming, isolation, invasive plant species, and roadside mortality)

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10. Fish & Wildlife Service ESA Settlement In re: Endangered Species Act Section 4 Deadline Litigation, 716 F.Supp.2d 1369 (MDL 2010). 12 actions filed by WildEarth Guardians and Center for Biological Diversity against FWS. – “All actions allege that defendants have failed to make timely findings on the petitions for listing as required by Section 4 of the ESA.” Consolidated in D.D.C. 10

11. Fish & Wildlife Service ESA Settlement Process Challenged – ESA §4(b)(3): Citizen petition to list species, designate habitat FWS must respond at 2 intervals: – 90 day finding: “whether petition presents substantial scientific or commercial information indicating the petitioned action may be warranted.” » If so, FWS must begin status review. – 12 month finding: “warranted,” “not warranted,” or “warranted but precluded by higher priority actions.” 11

12. Applies to 757 species, including all 251 candidate species at the time By September 30, 2016: A Proposed Rule or “Not Warranted” finding – Specified schedule within that group – No option to retain species as a candidate species Fish & Wildlife Service ESA Settlement 12

13. Northern Long Eared Bat (NLEB) On April 2, 2015, the Service published a final listing and interim rule under section 4(d) of the Endangered Species Act (ESA) for the northern long-eared bat. The effective date of the rule is May 4, 2015. 13

14. Northern Long Eared Bat (NLEB) Final 4(d) Rule published on January 14, 2016. Will become effective February 16, 2016 14

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17. Northern Long Eared Bat (NLEB) The NLE bat is found in 37 states, including West Virginia, thirteen Canadian provinces, and the District of Columba. The final rule focuses on areas where white nose syndrome – WNS – have occurred. Several exemptions are included 17

18. Northern Long Eared Bat (NLEB) The rule recognizes WNS as the main cause of the decline of the NLE bat’s numbers, and that it is not habitat limited The rule focuses on protection of hibernacula and maternity roost trees 18

19. Northern Long Eared Bat (NLEB) Purposeful take prohibition (the general prohibition for threatened species) of 50 CFR 17.31, exceptions: – Removal of bats from human structure – Removal of hazardous trees for the protection of human life and property – Authorized handling and capture of NLE bats (until May 3, 2016) 19

20. Northern Long Eared Bat (NLEB) Incidental take of NLE bats: Inside WNS zone v outside WNS zone – Outside WNS zone, incidental take not prohibited Non-tree removal activities v. tree removal activities inside WNS zone – For non-tree removal activities outside of hibernacula, incidental take not prohibited (e.g., wind farms, prescribed fire, pesticides) 20

21. Northern Long Eared Bat (NLEB) Tree removal activities inside WNS zone prohibited: – Within.25 mile radius of hibernacula – Cuts or destroys maternity roost trees or trees within 150-foot zone around a known maternity roost tree during pup season, June 1 st through July 31 st 21

22. Crayfish update 22

23. Historical Range 23

24. Historical Range and Population Locations 24

25. April 7, 2015 Proposal Service proposal to list both the Big Sandy Crayfish and the Guyandotte River Crayfish as endangered under the ESA. Found in WV, KY, and VA. 80 Fed. Reg. 18709. Following a 60-day public comment and peer review period, the Service will make a final decision for each of these species to list as endangered or threatened, or to withdraw the proposal. 25

26. Additional Comment period Additional sampling effort in second half of 2015 for both the Big Sandy Crayfish and the Guyandotte River Crayfish by Prof. Loughman and his students Reports prepared by Prof. Loughman in support of listing both species Additional comment period to comment on proposed listing (new data) 26

27. Basis for proposed listings: Threat to habitat The proposed listing and designation of critical habitat was based primarily upon the USFWS’s conclusion that activities or conditions in the two river basins represent “the present or threatened destruction, modification, or curtailment of its habitat or range, and “other natural or manmade factors affecting its continued existence.” 27

28. Primary Factor in species’ decline: Sedimentation Sedimentation in streams is noted as a primary factor in the stated decline of the Big Sandy and Guyandotte crayfish. Coal mining, timbering and timber roads, oil and gas well and pipeline development and oil and gas roads, and off-road vehicle use, such as the very popular Hatfield-McCoy trail system, are all activities focused on by the USFWS as causing sedimentation and water quality degradation detrimental to the crayfish. 28

29. Many offered comments opposing listings during original comment period Lack of adequate data upon which to base either proposed listing and the failure of the USFWS to obtain peer review of its listing determination prior to seeking public comment. Proposed listing for the Guyandotte crayfish was based upon a species just publically identified in December 2014, only months prior to the USFWS’s April 2015 Federal Register notice. Inconsistencies and data gaps in the USFWS’s notice and pointed out the lack of consideration given to existing laws limiting discharges of sediment or other pollutants into waters. 29

30. Prior Comments These two species have been considered a single species for decades Numerous preserved specimens held by state agencies and others should be evaluated to the species level to more accurately evaluate the range and population of these crayfish prior to making a listing determination 30

31. New Data Both sampling efforts resulted in more sites where species present – Clear Fork and Laurel Fork for Guyandotte crayfish – For Big Sandy Crayfish, present in 16 of 65 sites sampled in Tug watershed in 2015 Guyandotte crayfish sites still limited Tug Fork sites for Big Sandy crayfish Other questions still not answered 31

32. Allyn G. Turner Steptoe & Johnson, PLLC January 28, 2016 Allyn.turner@steptoe-johnson.com 32