March 17, Dear Mr. Sullins:

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1 Tony Sullins Endangered Species Chief, Midwest Regional Office Public Comment Process Attn: FWS-R5-ES Division of Policy and Directives Management U.S. Fish and Wildlife Service 4401 N. Fairfax Drive, MS 2042-PDM Arlington, VA RE: Comments on Endangered and Threatened Wildlife and Plants; Listing the Northern Long-Eared Bat With a Rule Under Section 4(d) of the Act (Docket No. FWS-R5-ES ; ) Dear Mr. Sullins: The American Association of State Highway and Transportation Officials (AASHTO) appreciates the opportunity to submit comments on the proposed listing of the northern long-eared bat with a speciesspecific rule under authority of section 4(d) of the Endangered Species Act (ESA), as published in the Federal Register on January 16, AASHTO is a nonprofit, nonpartisan association representing transportation departments in the 50 states, the District of Columbia, and Puerto Rico. It represents all modes of transportation and its primary goal is to foster the development, operation, and maintenance of an integrated national transportation system. Our members work closely with U.S. Department of Transportation agencies to operate, maintain, and improve the nation s transportation system. In a 2013 notice of proposed rulemaking, the U.S. Fish and Wildlife Service (Service) proposed that the northern long-eared bat be listed as an endangered species. The current notice of proposed rulemaking issued by the Service is now considering four possible determinations regarding the status of the northern long-eared bat: (1) listing is not warranted; (2) listing is warranted as endangered; (3) listing is warranted as threatened; or (4) should it be determined that a threatened status is warranted, a species-specific rule under section 4(d) of ESA may be advisable. A 4(d) rule provides flexibility in implementing the ESA by allowing the Service to tailor and limit prohibitions to those that make the most sense for protecting and managing at-risk species. Additionally, a 4(d) rule provides that the regulated community not be unduly burdened by regulations that do not further the conservation of the species and that private land owner and citizens are exempt from take prohibitions when conducting activities that benefit conservation of the species. Without a 4(d) rule, threatened species automatically receive the same protection as endangered species, thereby greatly increasing the restrictions placed on the regulated community in order to protect the species. We offer the following general comments on the proposed rule followed by several specific comments.

2 Page 2 of 6 I. General Comments The Service has identified white-nose syndrome (WNS) as the primary threat to the northern long-eared bat. Additionally, the Service has identified human disturbances in roost and hibernation areas and forest habitat modification as secondary threats that may injure or lead to the extirpation of the northern long-eared bat. According to the Service, these secondary threats have not independently caused significant population-level declines. As such, AASHTO recommends that the Service limit regulatory requirements to the 25 of the 37 states in which WNS is present within the range of the northern-long eared bat. Habitat located along transportation corridors is not likely to be occupied by hibernacula or maternity roosts of the northern long-eared bat, as these corridors provide sub-optimal habitat for the species. Should a northern long-eared bat be identified in this fringe area, it is more common to find individual bats, as opposed to hibernacula or maternity roosts. This fringe habitat in transportation corridors often consists of less densely populated forests as well as juvenile trees. As such, it is not likely that maintenance and limited expansions of transportation corridors will be a major contributing factor to the species decline or a threat to their recovery. The State Departments of Transportation (DOTs) conduct infrastructure maintenance activities and improvements on a daily basis including trimming or cutting trees, cleaning of roadside ditches and structures, pavement preservation, guardrail replacement and other similar activities within or immediately adjacent to the transportation corridor to ensure that the transportation infrastructure is clean, clear and safe for the traveling public. Should the species be listed without a 4(d) rule, these activities would be prohibited. As such, project by project consultations would be required prior to conducting these activities, which will place a significant burden on the Service and negatively impact transportation project delivery. However, a 4(d) rule would allow activities that may only cause limited amounts of take, such as maintenance and limited expansions of transportation corridors. This tailored 4(d) approach would allow the Service to focus on actions that are most important to conservation of the species. Therefore, should the Service determine that listing the northern long-eared bat is warranted, AASHTO recommends listing the species as threatened under section 4(d) of the ESA. A section 4(d) rule would allow the DOTs to carry out many of the tasks which are necessary for improving and maintaining existing transportation infrastructure for the safety of the traveling public. This option represents the most practical and balanced approach for protecting the long-term welfare of the species while minimizing regulatory impact to activities that pose the least threat. II. Specific Comments a. Conservation Measures AASHTO appreciates the Service s efforts to focus conservation measures on protecting the northern long-eared bat in areas where they are most concentrated and during their most sensitive life stages. However, the proposed rule emphasizes known hibernacula and known maternity roosts. As written, the proposed rule seems to suggest that available hibernacula and roosting data should be used to steer conservation measures. However, in many states, this data is either not available or is very limited. Without sufficient data, we are concerned that project review times will be greatly expanded. Therefore, AASHTO recommends that the Service compiles this data and make this data available to state agencies

3 Page 3 of 6 in order to verify that conservation measures are applied appropriately during infrastructure project development. This would ensure the sufficient protection of the species and prevent negative impacts to project delivery. b. Maintenance and Limited Expansion of Existing Rights-of-Way and Transmissions Corridors AASHTO supports the exemption for the prohibition of take for activities related to maintenance and limited expansion of existing rights-of-way for transportation, when carried out in accordance with clarified conservation measures set forth by the Service as part of the 4(d) rule. In the proposed rule, it is not clear whether the Service is distinguishing between vegetation management within right-of-way and maintenance of the infrastructure. Although vegetation management within the right-of-way is important, it is only one component of a large maintenance program that also includes the repair, rehabilitation and replacement of infrastructure. In the proposed 4(d) rule, the Service outlines activities which will be exempt from the prohibition of incidental take provided that the activities fall within two categories. We offer the following comments on each of these categories: (1) Routine maintenance within an existing corridor or ROW, carried out in accordance with the previously described conservation measures. To ensure that infrastructure is maintained to be safe and operable, we recommend that the 4(d) rule include clarification that the take exception also applies to maintenance of infrastructure. Therefore, AASHTO recommends adopting the term routine maintenance in the 4(d) rule as defined in a Federal Highway Administration (FHWA) Memorandum on Pavement Preservation Definitions or any subsequent interpretative document issued by FHWA. 1 In the memorandum routine maintenance is defined as consisting of work that is planned and performed on a routine basis to maintain and preserve the condition of the highway system or to respond to specific conditions and events that restore the highway system to an adequate level of service. Additionally, we recommend that this category be expanded to include the terms preventative maintenance, corrective maintenance and catastrophic maintenance as defined in the same memorandum. Preventive maintenance is defined in the memorandum as a planned strategy of costeffective treatments to an existing roadway system and its appurtenances that preserves the system, retards future deterioration, and maintains or improves the functional condition of the system (without significantly increasing the structural capacity). 1 See FHWA, September 12, 2005, Memorandum on Pavement Preservation Definitions available at

4 Page 4 of 6 In the memorandum corrective maintenance describes activities that are performed in response to the development of a deficiency or deficiencies that negatively impact the safe, efficient operations of the facility and future integrity of the pavement section. Corrective maintenance activities are generally reactive, not proactive, and performed to restore a pavement to an acceptable level of service due to unforeseen conditions. Lastly the memorandum describes catastrophic maintenance as work activities generally necessary to return a roadway facility back to a minimum level of service while a permanent restoration is being designed and scheduled. Transportation preservation activities are economically important, prolonging the functional life of the infrastructure and delaying expensive and more invasive replacements that could have a greater impact on the northern long-eared bat. Along with the activities already offered in the proposed 4(d) rule, these additional suggested types of activities would not result in increased forest fragmentation as they occur within the footprint of the existing right-of-way. (2) Expansion of a corridor or ROW by up to 100 feet (30 m) from the edge of an existing cleared corridor or ROW, carried out in accordance with the previously described conservation measures. AASHTO supports the inclusion of this category, which permits expansion of a corridor or right-of-way by up to 100 feet from the edge of an existing cleared corridor or right-ofway. This expansion would have little to no adverse impact on the species as this area is suboptimal habitat and therefore unlikely to be refuge to hibernacula or maternity roosts. Should a northern long-eared bat be present, it is more likely to observe individual bats in this fringe environment. Restricting the activity to less than 100 feet from the edge of an existing cleared corridor or ROW would not likely enhance the protection and recovery of the species. Additionally, we recommend inclusion of the terms temporary and permanent rights-ofway easements in the expansion of a corridor or ROW by up to 100 feet (30 m) from the edge of an existing cleared corridor or ROW category. These areas often require maintenance activities to preserve the condition of the transportation infrastructure, facilitate access, provide drainage, or to respond to specific conditions (such as storm damage maintenance, slope failure, etc.). DOTs must be able to improve these conditions in order to restore the system to an adequate level of service. Including the terms temporary and permanent rights-of-way easements in the list of activities that would not be prohibited from incidental take would ensure that State DOTs are able to maintain and improve the functional condition of the transportation system while still within the confines of the term ROW maintenance as set forth in the proposed 4(d) rule. These activities will not adversely affect the conservation and recovery of the species, as they will occur within fringe habitat in which individual bats, if present, may readily relocate to an alternate habitat during minor activities.

5 Page 5 of 6 c. Projects Resulting in Minimal Tree Removal In the draft 4(d) rule the Service proposes that incidental take that results from projects causing minimal tree removal will not be prohibited when carried out in accordance with the conservation measures. The Service has indicated that tree removal for other small projects (i.e., culvert replacement) does not significantly change the overall nature and function of the local forested habitat. Additionally the Service has concluded that in some cases projects will increase habitat availability in the long term. AASHTO recommends that the Service further clarify that tree removal up to 100 feet from the edge of a transportation corridor or right-of-way will constitute minimal tree removal when carried out in accordance with the conservation measures. Additionally, we recommend that the Service authorizes the removal of a limited number of trees in excess of 100 feet from the edge of a transportation corridor or right-of-way pursuant with the conservation measures. State DOTs regularly remove trees for small projects in order to maintain and preserve the condition of the transportation system at a satisfactory level of service. Habitat surrounding small projects is often not suitable as trees are either immature or invasive. Therefore, it is unlikely that selective tree removal in these areas would result in increased forest fragmentation. Further clarification of the terms minimal tree removal and limited number of trees would ensure that State DOTs are better able to maintain and improve the functional condition of the transportation system. d. Hazardous Tree Removal The proposed 4(d) rule states that incidental take that is caused by tree removal and management of hazardous trees will not be prohibited as the removal of these trees is typically performed for the safety of humans and protection of human facilities. The proposed 4(d) rule indicates that hazardous trees typically exhibit physical defects that impact their likelihood to fall. Within the context of transportation infrastructure, additional circumstances exist in which healthy and sound trees may be considered hazardous, including but not limited to: potential to fall; impairment of sight distance or sign visibility; reduction of sun exposure leading to icy conditions in winter; occurrence within the deflection distance of guardrail; and acting as a deadly fixed object to vehicles that may leave the paved surface. Therefore, AASHTO recommends that the allowance of hazardous tree removal in the proposed rule be expanded to include the potential of trees to cause personal injury or property damage, regardless of how this might occur. Additionally, the proposed 4(d) rule recommends that wherever possible, removal of hazardous tress be done during the winter. Adhering to this requirement may not always be practical or in the best interest of public safety. Therefore, to accommodate the urgent nature of some hazardous tree removal activities, we recommend that the term wherever possible be change to wherever prudent. e. Removal of Bats From and Disturbance Within Human Dwellings The proposed rule states that the limited take of bats from disturbances within human dwellings will not be prohibited. Additionally, the recommendations in section (B) under Removal of Bats From Disturbances Within Human Dwellings of the rule states that If bats (of any species) are using structures (e.g., barns or other outbuildings) as roosts, and

6 Page 6 of 6 these structures are proposed for removal, removal should be performed outside of the summer maternity season, unless there are human health or safety concerns associated with the structure. This language suggests that structures other than human dwellings are exempt. The Service has concluded that the overall impact of bat removal from human dwellings is not expected to adversely affect conservation and recovery of the species. In addition to human dwellings, State DOTs often remove various structures such as barns, sheds and bridges for roadway projects. As with the removal of human dwellings, the removal of these structures would also not likely adversely impact the conservation or recovery of the northern long-eared bat. Therefore, we recommend that incidental take from removal of the structures within 100 feet of the existing right of way listed above be included in the incidental take exemption as long as the removal is carried out in accordance with the conservation measures as described in the proposed 4(d) rule. We also recommend that the title of this section be amended to Removal of Bats from Disturbances within Man-Made Structures. In Summary, AASHTO understands the severity of the effects that WNS has had on the population of the northern long-eared bat and the difficulties that the Service is facing to safeguard the future of the species. However, the removal of low-quality fringe habitat such as those that are disturbed along transportation corridors or within existing rights-of-way will likely not have a discernable impact on the recovery of the species. As proposed, listing the species as threatened under section 4(d) of the ESA would ensure that appropriate conservation measures to protect the species are undertaken while exempting incidental takes associated with normal transportation-related activities which are not likely to negatively impact the northern long-eared bat. We appreciate the opportunity to provide comments on the Service s proposed listing of the northern long-eared bat under section 4(d) of the ESA. Should you have any questions, please contact Kate Kurgan at (202) Sincerely, Bud Wright Executive Director