New Bat Rules May Affect Future Construction Projects, including New VDOT Tree Removal Limits

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Contractors and owners with projects that may affect forested areas after December of 2022 may face more restrictive prohibitions against tree removal under a proposed rule that would list the northern long-eared bat as an endangered species.

The northern long-eared bat is found in 37 states, including Virginia.  Like most bats, it is a beneficial nighttime hunter that helps control insect populations, and so it enjoys various state and federal protections, including protections under Virginia regulations.  At the federal level, the bat was listed as "threatened" under the Endangered Species Act ("ESA") in 2015 due to the loss of habitat and the effects of a deadly disease affecting the species known as white-nose syndrome.  Under the ESA, the U.S. Fish and Wildlife Service ("FWS") can list a species as either endangered or threatened.  A species listed as endangered is afforded all of the ESA's legal protections, including designation of a species' "critical habitat," or habitat that is essential to the conservation of the species.  For species listed as threatened, however, FWS has significant discretion in deciding what protections, if any, should be afforded to the species.  When FWS listed the bat as threatened in 2015, it declined to designate critical habitat.  This rule was successfully challenged by environmental groups in federal court, and FWS was ordered to issue a new rule by December of 2022.  In response, on March 22, 2022 FWS proposed to list the bat as endangered.  Part of the proposed rule could include designation of certain forested areas as bat critical habitat.

In anticipation of this rule going into effect, the Virginia Department of Transportation ("VDOT") issued new special provisions on June 10, 2022 that will prohibit the removal of most trees between April 1 and November 14 beginning December 22, 2022.  VDOT has directed that this special provision be considered for any bid proposal currently advertised as of June 10, 2022.  As such, bidders will have to assess and amend their bids as appropriate.  While the future of the FWS's proposed rule is hard to predict because of expected litigation, it is likely VDOT is taking this step proactively so bidders can consider the time and costs associated with these restrictions before contract award versus having to address them later mid-project if and when FWS's rule becomes effective.

It is important to highlight that the proposed bat listing could impact existing VDOT construction projects as well if tree removal is planned after December of 2022.  In addition, the proposed rule could affect other similarly situated industrial activities that affect or occur in forested areas, including timber, renewable energy siting, utilities, terrestrial wind turbine operations, and property development. As such, contractors and owners should assess potential impacts on their projects if tree removal restrictions are imposed after December of this year.

Our firm is closely monitoring the development of the FWS rule and its potential to impact construction projects in the region.

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