FINALIZATION OF THE MISSOURI BAT PROGRAMMATIC INFORMAL CONSULTATION FRAMEWORK
This notice is an informational notice only, no comments are requested.
PURPOSE: The purpose of this public notice is to announce the Kansas City, Little Rock, St. Louis, Rock Island, and Memphis Districts of the U.S. Army Corps of Engineers (Corps) and the United States Fish and Wildlife Service (USFWS) have completed programmatic informal consultation for all activities requiring Department of the Army permits. This consultation, which covers activities in waters of the United States within the state of Missouri, complies with the provisions of Section 7 of the Endangered Species Act (ESA).
Completion of this consultation eliminates the need for individual ESA consultation on most permit applications submitted to the Corps for activities located in habitat for bats protected under the ESA. The completion of this consultation will improve the permit evaluation process by reducing the time required for evaluation of many permit applications while assuring compliance with the requirements of the ESA.
The Missouri Bat Programmatic (MBP) informal consultation covers three bat species (Indiana bat, Northern long-eared bat, and Gray bat) listed under the ESA within the state of Missouri. The large majority of consultations conducted by the Corps in Missouri are for the listed bats, and with the finalization of the MBP, many future consultations are anticipated to be covered under this standardized framework. Other listed fish, wildlife and plant species are not addressed by this consultation and will be subject to individual consultation requirements. In order for the Corps to utilize the MBP, the applicant must voluntarily agree to implement the required conservation measures. If the applicant chooses not to adhere to the conservation measures in the MBP, the Corps will consult with the USFWS for listed bat species using formal or informal procedures.
BACKGROUND: What is ESA consultation? Section 7 of the ESA requires federal agencies, such as the Corps, to consult with USFWS to ensure any action authorized by the agency is not likely to jeopardize the continued existence of species listed as threatened or endangered or result in the destruction or adverse modification of critical habitat for those species. Under the Corps’ permit program, permit applications are reviewed to determine any potential adverse effects on listed threatened and endangered species and their critical habitat. The Corps then consults with USFWS, using formal or informal procedures, to evaluate the potential effects of the proposed work and any conservation measures which can be implemented to help protect the listed species and their habitat.
What is a programmatic consultation? A programmatic consultation covers a range of actions proposed to be authorized by a federal agency such as the types of activities subject to the Corps’ regulatory jurisdiction. Once a programmatic consultation is completed, case-by-case ESA consultations are no longer required for the specified activities as long as the terms and conditions of the programmatic consultation are met by the permittee.
Why is a programmatic consultation needed? Three species of listed bats make up a large majority of the consultations conducted between the Corps and the USFWS in Missouri in a given year. These consultations generally produce the same repeatable outcome but still take approximately 30 days. Also, these bats are found in upland and riparian environments across nearly all of Missouri, with the exception of the Gray bat which is tied specifically to certain areas of the Ozarks. Most permit applications received by the Corps impact bat habitat which has resulted in a substantial increase in workload for both the Corps and USFWS, and increased the length of time required for the processing of permit applications.
CONSULTATION SPECIFICS
What types of activities are covered by this programmatic consultation? Regulated activities (i.e., actions) that fall under this biological evaluation (BE) are limited to those activities that are proposed to impact areas delineated as jurisdictional Waters of the United States (33 CFR §328) and areas considered to be in the action area under the ESA (50 CFR §402.02), when considering the potential direct and indirect effects that are reasonably certain to occur, and contain suitable habitat for listed bats in Missouri. This BE applies to actions that are authorized with Standard or Individual Permits, Letters of Permission, or General Permits which include Nationwide Permits, Regional General Permits, and Programmatic General Permits.
The Corps action will be evaluated using the project’s location within one of three habitat zones as defined by the USFWS (Enclosure 1). Zone 1 conservation measures apply to actions within the State of Missouri excluding Zones 2 and 3. Zone 2 conservation measures apply to actions within 5.0 miles (radius) of a known capture of a listed bat. Zone 3 conservation measures apply to actions that occur within 0.25 miles (radius) of a known roost tree or hibernacula.
What does a permit applicant need to do to be covered by this consultation? An applicant can expedite the review of their project by reviewing the conservation measures associated with the zone in which their project is located and insure the project design complies with those requirements. Conservation measures are actions that benefit or promote the recovery of a listed species that a Federal agency includes as an integral part of its proposed action and that are intended to avoid, minimize or compensate for potential adverse effects of the action on the listed species. When the application is received by the Corps, it can be expeditiously processed without a need to further consult with USFWS. The conservation measures are identified below.
- All tree clearing will occur during the bat inactive season from November 1 to March 31 unless negative presence/probable absence survey results were obtained for the action area through appropriate surveys approved by the USFWS.
- The applicant must conduct a bat habitat assessment if the applicant’s overall project will occur in Zone 1 and includes more than 10 acres of tree clearing. If the results indicate that more than 10 acres of suitable roosting habitat will be cleared, the Corps will require presence/probable absence surveys to determine if additional consultation is necessary or the project will not affect listed bats.
- The applicant must conduct a bat habitat assessment if the applicant’s overall project will occur in Zone 2 and includes more than 5 acres of tree clearing. If the results indicate that more than 5 acres of suitable roosting habitat will be cleared, the Corps will require presence/probable absence surveys to determine if additional consultation is necessary or the project will not affect listed bats.
- If located in Zone 1, the applicant’s overall project will not remove more than 10 acres of suitable roosting habitat during the inactive season.
- If located in Zone 2, the applicant’s overall project will not remove more than 5 acres of suitable roosting habitat during the inactive season.
- A Corps action will not result in the removal of trees in Zone 3.
- Tree clearing associated with the applicant’s overall project and the Corps action will not result in a cumulative loss of more than 5% of the baseline (2005) forested acreage of each District over 20 years.
- If the applicant’s overall project is located in a karst area and will involve construction methods that may cause deep ground disturbance, the applicant must conduct a cave search to be conducted to determine if any caves are present in the action area that would be considered suitable habitat for listed bats and/or are currently or formerly used by listed bats.
What if my project does not qualify for the programmatic consultation? Permit applicants whose projects cannot adhere to the conservation measures in the BE, or have chosen not to abide by the conservation measures, may still apply to the Corps for a permit but individual consultation with USFWS will be required for ESA compliance before a decision can be made. Individual consultations may be time-consuming and can delay the Corps decision on the permit application. While not every project can be modified to meet the terms and conditions of the programmatic consultation, it is in the best interest of the applicant to consider configuring a proposed project to fit within those limits.
EFFECTIVE DATE: The MBP is effective with the issuance of this notice.
PERIODIC REVIEW: The MBP informal consultation framework will be reviewed annually by the Corps and USFWS and updated as necessary based upon experiences during use.
ADDITIONAL INFORMATION: Your best source of information is the Regulatory District who will process your permit application. Each District’s geographical areas of responsibility, phone numbers, and email addresses can be found on our website or in the attached map (Enclosure 2).