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THE NORTHERN LONG-EARED BAT: 

THE FEDERAL ENDANGERED 

SPECIES ACT AND IMPACTS OF A 

LISTING ON PENNSYLVANIA AND 

37 OTHER STATES 

OVERSIGHT FIELD HEARING 

BEFORE THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

Monday, September 8, 2014, in Harrisburg, Pennsylvania 

Serial No. 113–85 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.fdsys.gov 

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

DOC HASTINGS, WA, Chairman 

PETER A. DEFAZIO, OR, Ranking Democratic Member 

Don Young, AK 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Steve Southerland, II, FL 

Bill Flores, TX 

Jon Runyan, NJ 

Markwayne Mullin, OK 

Steve Daines, MT 

Kevin Cramer, ND 

Doug LaMalfa, CA 

Jason T. Smith, MO 

Vance M. McAllister, LA 

Bradley Byrne, AL 

Eni F. H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Colleen W. Hanabusa, HI 

Tony Ca ́ rdenas, CA 

Jared Huffman, CA 

Raul Ruiz, CA 

Carol Shea-Porter, NH 

Alan S. Lowenthal, CA 

Joe Garcia, FL 

Matt Cartwright, PA 

Katherine M. Clark, MA 

Vacancy 

Todd Young, Chief of Staff 

Lisa Pittman, Chief Legislative Counsel 

Penny Dodge, Democratic Staff Director 

David Watkins, Democratic Chief Counsel 

(III) 

CONTENTS 

Page 

Hearing held on Monday, September 8, 2014 ....................................................... 1 

Statement of Members: 

Hastings, Hon. Doc, a Representative in Congress from the State of 

Washington .................................................................................................... 2 

Prepared statement of ............................................................................... 3 

Perry, Hon. Scott, a Representative in Congress from the State of 

Pennsylvania ................................................................................................. 6 

Thompson, Hon. Glenn, a Representative in Congress from the State 

of Pennsylvania ............................................................................................. 4 

Statement of Witnesses: 

Biggica, Russ, Director, Government and Regulatory Affairs, 

Pennsylvania Rural Electric Association, Harrisburg, Pennsylvania ....... 13 

Prepared statement of ............................................................................... 14 

Brubaker, Jim, Board Member, Pennsylvania Farm Bureau, Union 

County Farmer, Buffalo Valley Farms, Lewisburg, Pennsylvania ........... 31 

Prepared statement of ............................................................................... 33 

D’Amico, Louis, President and Executive Director, Pennsylvania 

Independent Oil and Gas Association, Wexford, Pennsylvania ................ 15 

Prepared statement of ............................................................................... 17 

Lyskava, Paul, Executive Director, Pennsylvania Forest Products 

Association, Harrisburg, Pennsylvania ....................................................... 56 

Prepared statement of ............................................................................... 58 

Matteson, Mollie, Senior Scientist, Center for Biological Diversity, 

Richmond, Vermont ...................................................................................... 49 

Prepared statement of ............................................................................... 50 

Melville, Martin, Owner, Melville Forestry Services, Centre Hall, 

Pennsylvania ................................................................................................. 54 

Prepared statement of ............................................................................... 55 

Pyle, Honorable Jeff, Representative, District 60, Pennsylvania House 

of Representatives, Armstrong, Indiana and Butler Counties .................. 9 

Prepared statement of ............................................................................... 10 

Stilley, John, Owner and President, Amerikohl Mining, Inc., Butler, 

Pennsylvania ................................................................................................. 36 

Prepared statement of ............................................................................... 38 

Additional Materials Submitted for the Record: 

Juniata Valley Audubon, Stan Kotala, M.D., Conservation Chair, Letter 

submitted for the record ............................................................................... 82 

McCarter, Steve, State Representative, Pennsylvania’s 154th Legislative 

District, September 5, 2014, Letter submitted for the record ................... 83 

(1) 

OVERSIGHT FIELD HEARING ON THE 

NORTHERN LONG-EARED BAT: THE FEDERAL ENDANGERED SPECIES ACT AND IMPACTS OF A LISTING ON PENNSYLVANIA 

AND 37 OTHER STATES 

Monday, September 8, 2014 

U.S. House of Representatives 

Committee on Natural Resources 

Harrisburg, Pennsylvania 

The committee met, pursuant to call, at 10:00 a.m., at the 

Pennsylvania State Capitol Complex, North Office Building, 

Hearing Room 1, Harrisburg, Pennsylvania, Hon. Doc Hastings 

[Chairman of the Committee] presiding. 

Members present: Representatives Hastings, Thompson, and 

Perry. 

The CHAIRMAN. The House Natural Resources Committee will 

come to order. The committee meets today to hear testimony on a 

hearing entitled ‘‘The Northern Long-Eared Bat: The Federal 

Endangered Species Act and Impacts of a Listing on Pennsylvania 

and 37 Other States.’’ 

By way of introduction, I am Congressman Doc Hastings, and I 

represent that 4th District in Washington State, and also have the 

privilege to serve as Chairman of the House Natural Resources 

Committee. I am joined here by two of my colleagues; Mr. Thompson from Pennsylvania, who is a member of the committee, and Mr. 

Perry, in whose district we are meeting, who is not, so I—without 

objection, I will ask unanimous consent that Mr. Perry be able to 

join the hearing, and I know nobody is going to object because I am 

not and neither is G.T., so I know that. 

So since we are in Mr. Perry’s district, I am going to yield to him 

to begin as we normally begin our day in Washington, DC, and I 

will yield to Mr. Perry. 

Mr. PERRY. Well, thanks, Mr. Chairman, and welcome to the 4th 

Congressional District. Being that this is a congressional hearing 

that we are about to begin, as we do with every session of the 

House of Representatives, with the posting of the colors and the 

Pledge of Allegiance, and keeping with flag code, it is customary to 

stand and place your hand over your heart every time the flag is 

in motion, and remain standing for the Pledge of Allegiance. 

I now recognize Major Bruce Youngblood, U.S. Marine Corps retired, to lead the Harrisburg High School NJROTC to post the 

colors. 

[Pledge of Allegiance recited.] 

Mr. PERRY. As a token of our appreciation, we graciously give 

and offer this flag flown over the United States Capitol, and I am 

going to walk down and hand it to the—— 

2 

The CHAIRMAN. I thank the gentleman for that, and I thank the 

Color Guard. 

We will proceed as we normally proceed on congressional hearings in Washington, DC, and those hearings are all started where 

Members will make an opening statement, and then after that, we 

will hear from our witnesses, and then following that will be questions that I know will arise coming from the three of us up here, 

and—well, I will get into that detail when we get to that part. 

I will now recognize myself for my opening statement. 

STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON 

The CHAIRMAN. Today is the final in a series of field hearings the 

House Natural Resources Committee has held over the past 4 years 

on The Endangered Species Act, or ESA. The goal of this effort has 

been to find common ground on the need to improve and update 

a 40-year-old Federal law so that we can help protect species and 

people in the 21st century. There are ways to do both, beginning 

with data transparency and utilizing the expertise of local, state 

and private efforts in fulfilling the goal of species recoveries. 

These hearings have taken us from Fresno, California; Longview, 

Washington; Billings, Montana; Casper, Wyoming; and Batesville, 

Arkansas, and now here to the great Commonwealth of 

Pennsylvania. 

Because of the mega settlement that will be alluded to many 

times, the ESA is now no longer primarily a western issue. It is 

now affecting the eastern parts of the United States, and that is 

what this hearing in Pennsylvania is all about. And I am pleased 

to have two of my colleagues here today in this beautiful state capitol to examine one of the most sweeping ESA listing proposals that 

has arisen out of the Obama administration’s 2011 mega settlement, with the Center for Biological Diversity, and the proposed 

endangered listed of the Northern Long-Eared Bat, which was in 

that mega settlement. These regulations, if culminated, could impact a wide swath of the country, and the map shown above you 

illustrates how broad of an area is affected. 

You know, what is kind of disturbing, although 38 states are affected, the Fish and Wildlife Service has not yet held even a single 

public hearing on its proposal or its nexus to other regulations that 

would directly impact the millions of acres of local, state and private lands, and that would cause the restriction or shutdown of the 

activities on those lands. 

Now, I mentioned that I am from Washington State, so on a parochial note, I just want to point out that it has been over 20 years 

since the Federal Government listed the Northern Spotted Owl in 

the Pacific Northwest. The resulting ESA policies of that decision 

have now resulted over 20 years, to where more than 80 percent 

of the timber industry there is off-limits and 9 million acres of 

forest are off-limits, and as a result of that, if you have read in the 

paper this year a number of wildfires that have happened in the 

West, and I attribute much of that because of lack of good management as a result of that listing. 

Now, back to the issue at hand. The Center for Biological 

Adversity, the group that is seeking to list the bat under ESA, acVerDate Mar 15 2010 11:33 Jun 25, 2015 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 J:\00 FULL COMMITTEE\00SE08 2ND SESS. PRINTING\89831.TXT DARLEN
3 

knowledge, and I will quote directly, ‘‘little is known about the population trends’’ of the bat, and that a small amount of population 

level data, and I quote again, ‘‘makes any conclusion provisional at 

best.’’ Now, this gray area led to a settlement, yet this group is 

blaming farming, forest management and other manmade activities 

as a cause for the bat decline. Ironically, the likely primary cause 

for any documented decline of the bats is not caused by any 

human-related activity, but rather by a disease transmitted mostly 

from bats, called the White Nose Syndrome. It seems to me that 

efforts should focus on that issue, rather than creating a Federal 

Endangered Species solution in search of a problem. Yet, that is 

what may happen with the Fish and Wildlife Service arbitrary settlement—with this mega settlement. 

Now, the result of that could pave the way for Federal designation as early as next year. This, despite many natural resource 

state directors who raised concerns that they were shut out of the 

Federal planning process, and that these Federal bat guidelines are 

overly restrictive, they are based on insufficient data, and would 

have a crippling effect on hundreds of thousands of landowners and 

the forest industries. 

So I will conclude by saying this. Everyone—every hearing that 

we have had with the Natural Resources Committee, nobody, nobody has said a species should go extinct. And we—and I certainly 

share that, and I think most people share that, but the passion— 

but the question in this particular case is the best way to help the 

bat population. Federal edicts that ignore state efforts and data, 

and impose one-size-fits-all solutions are not the most realistic way 

to achieve, I think, the objective of saving any species. 

[The prepared statement of Mr. Hastings follows:] 

PREPARED STATEMENT OF THE HON. DOC HASTINGS, CHAIRMAN, COMMITTEE ON

NATURAL RESOURCES

Today is the final in a series of field hearings the House Natural Resources 

Committee has held over the past 4 years on the Endangered Species Act (ESA). 

The goal of this effort has been to find common ground on the need to improve and 

update the 40-year-old Federal law so that we can help protect species and people 

in the 21st century. There are ways to do both, beginning with data transparency 

and utilizing the expertise of state, local and private efforts while fulfilling the 

worthwhile goal of species recovery. 

These hearings have taken us from Fresno, California; Longview, Washington; 

Billings, Montana; Casper, Wyoming; Batesville, Arkansas to the great Commonwealth of Pennsylvania. As we have witnessed, the ESA is no longer just a western 

issue—it is now affecting the eastern United States and that’s what this hearing 

is about. 

I am pleased to join several House colleagues here today in the State Capitol to 

examine one of the most sweeping ESA listing proposals arising out of the Obama 

administration’s 2011 mega-settlements with the Center for Biological Diversity: the 

proposed endangered listing of the Northern Long-Eared Bat. These Federal regulations could impact a wide swath of the country. 

This map illustrates just how broad of an area is affected. Unfortunately, 

although 38 states are affected, the Fish and Wildlife Service has not held even a 

single public hearing on its proposal or its nexus to other regulations that would 

directly impact millions of acres of private, local, state, and Federal lands and restrict or shut down a host of activities on them. I might add, it has been over 20 

years since the Federal Government listed the Northern Spotted Owl in the Pacific 

Northwest, and the resulting ESA policies of that decision have shut down more 

than 80 percent of the timber industry there, placed more than 9 million acres of 

forests off limits, and decimated hundreds of thousands of acres of forests and owl 

habitat from catastrophic wildfires due to poor management every year. 

4 

The Center for Biological Diversity, the group seeking to list the bat under ESA, 

acknowledges that ‘‘little is known about population trends’’ for the bat, and that 

the small amount of population-level data ‘‘makes any conclusion provisional at 

best.’’ Yet, they blame farming, forest management and other man-made activities 

as the cause of bat decline. 

Ironically, however, the likely primary cause for any documented decline of the 

bats is not caused by any human-related activity, but rather from a disease transmitted mostly from bats to other bats called ‘‘White Nose Syndrome.’’ It seems to 

me that efforts should focus on that issue, rather than creating a Federal endangered species solution in search of a problem. 

Yet, that is what may happen with the Federal Fish and Wildlife Service’s arbitrary settlement with the Center for Biological Diversity, which has paved the way 

for a Federal designation as soon as early next year. This is despite State Natural 

Resource Department Directors who raised strong concerns that they were shut out 

of the Federal planning process, and that these Federal bat guidelines are overly 

restrictive, based on insufficient data, and would have a ‘‘crippling effect’’ on hundreds of thousands of landowners and the forest industry. 

I will conclude by saying that everyone wants to protect bats because they are 

good for the environment and good for people because of how many insects they can 

devour. But, the question is over the best way to help the bat population. Federal 

edicts that ignore state efforts and data and impose one-size-fits-all solutions are 

not the most cooperative way to achieve this objective. We have expert witnesses 

here today to help find solutions that will protect bats and Pennsylvania’s economy. 

I look forward to their testimony and thank my colleagues Congressman Thompson 

and Congressman Perry for hosting this hearing. 

The CHAIRMAN. So today we have in front of us expert witnesses 

to offer solutions that will protect bats and Pennsylvania’s economy, and so I look forward to hearing your testimony. 

With that, I will recognize the gentleman from the 5th District 

in Pennsylvania, Mr. Thompson, for his opening statement. 

STATEMENT OF THE HON. GLENN THOMPSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA 

Mr. THOMPSON. Well, Mr. Chairman, thank you so much. I want 

to thank you for holding this important hearing today. Welcome, 

everyone, to this hearing. Thank you to our witnesses who are here 

to testify and share your experience, your observations, your 

thoughts. 

Mr. Chairman, I want to thank you also as you finish up in your 

final term, and we have lots of work to do between now and the 

end of that, but I also want to thank you for all of your extensive 

work in the House of Representatives, especially as Chairman of 

the Natural Resources Committee over these past few years, which 

I have had an honor to serve under your leadership. You have been 

a great mentor and a great leader on these issues for the American 

people. 

Under your chairmanship, you have shown real leadership on so 

many issues, and this is especially true on the topic of the 

Endangered Species Act with a creation of the ESA Working Group 

and the numerous bills the committee has reported out. 

I just want to remark a little bit about, you know, if this administration—it struck me, we had a unique perspective here, looking 

out at all of you when we were honoring our Nation’s flag and colors and we were unified today; if this administration would bring 

a team together and, quite frankly, respect everybody’s opinion in 

a way that unites the way this room was united at the start of this 

hearing, we wouldn’t be having this hearing today because 

5 

everybody’s input would be welcome and would be considered on 

important issues such as this—the Northern Long-Eared Bats, but 

it is that, quite frankly, that lack of leadership that has kind of led 

us to this point. 

Let me say that the goals of the Endangered Species Act are 

noble and worthy. You know, we have a responsibility to protect 

our environment and promote species conservation, but as we have 

seen over the past few decades, the ESA is far from perfect, and 

has generated many unintended consequences. As a result, we are 

at a point now where the law desperately needs to be improved and 

modernized. In fact, I think the last time that the ESA was updated was 1984. 

VOICE. 1989. 

Mr. THOMPSON. 1989. Under the Chairman’s leadership, through 

work at the committee level, and efforts by the Congressional ESA 

Working Group, we put forward a thoughtful analysis of some of 

the key areas of the law that need the most urgent attention. Now, 

these efforts are focused on making the law more transparent, ensuring that listing determinations are based on sound science and 

proper data, and most importantly, that local communities and 

stakeholders are provided a voice in the process. Furthermore, we 

have sought to build consensus around better solutions, which isn’t 

always easy in the current political climate. 

Now, as many here know, and as we have seen countless times 

around the country, listing a species as endangered under the ESA 

can have significant consequences on private property, land use, resource management and our economy. As frequently required by 

ESA, limiting or prohibiting land use can impact any number of 

economic activities in the communities that rely on the land. This 

includes activities such as agriculture, mining, as well as energy 

production and distribution. This also includes forestry and all 

forest management activities, which can be precluded under an 

ESA listing. Now, forestry is particularly troubling because even 

management activities to promote forest health can be restricted 

under ESA. This is interesting because it is also contrary to 

Pennsylvania Department of Community and Natural Resources 

findings that forest management activities including removing timber and proscribed burns help create foraging habitat that is beneficial to bats. 

While the economic and land management impacts are troubling 

enough, another major concern I have with this proposed listing is 

that limiting land use activities fundamentally will not solve the 

problem in the case of the Northern Long-Eared Bat. The underlying problem with the species is the spread of the White Nose 

Syndrome, rather than habitat loss due to human activities. And 

no one can deny population losses due to the White Nose 

Syndrome, but furthermore, there is a consensus that we must 

know more about this disease, and to improve partnerships at all 

levels to improve science-based efforts to slow its spread. 

Unfortunately, at the current time, there is no casual connection 

between the land use being regulated under the proposed designation and harm to the species in question. The best that we have 

heard repeatedly from a variety of interests, the science and data 

are inconclusive at this time to warrant an ESA listing. In fact, as 

6 

is the service—forest—the Fish and Wildlife Service acknowledges, 

and I quote, ‘‘even if all habitat-related stressors were eliminated 

or minimalized, the significant effects of White Nose Syndrome on 

the Northern Long-Eared Bat would still be present.’’ 

The Fish and Wildlife Service recently granted a 6-month extension of public comment period, which I appreciate, referencing the 

substantial disagreement regarding the scientific data used to support determination. 

Listing the Northern Long-Eared Bat as endangered, potentially, 

will have enormous impacts up and down the East Coast because 

the species is found not just in the Keystone State of Pennsylvania, 

but, obviously, 38 states. So, therefore, it is imperative that we get 

the science right, and strategically address the root problem of the 

apparent population losses, rather than restrict large areas of the 

economy and activities that would have no bearing on slowing or 

reversing the White Nose Syndrome. 

Again, thank you, Mr. Chairman, for being here today and for 

hosting this important hearing. I thank you to my good friend and 

colleague, Mr. Perry, for having this in his congressional district, 

and to all the panelists, thank you for your time and efforts, and 

we look forward to hearing your testimonies. 

Mr. Chairman, I yield back. 

The CHAIRMAN. I thank the gentleman for his statement and now 

recognize our host today, the gentleman from, as we say in 

Washington, DC, the gentleman from the 4th District of 

Pennsylvania, Mr. Perry, for his statement. 

STATEMENT OF THE HON. SCOTT PERRY, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF PENNSYLVANIA 

Mr. PERRY. Thank you, Chairman, and thank you for selecting 

the 4th District, beautiful Pennsylvania, to hold this hearing, and 

I must let you know that I have really grown, in a short period of 

time, very fond of Chairman Hastings, Doc, as we call him, and let 

him know how saddened I am to know that he is departing the 

U.S. Congress, and I have really enjoyed my time with him, and 

find him to be one of the most professional and well-read and articulate Members of Congress, and I think his leadership in that 

regard will be dearly missed. I would also like to thank G.T. for 

coming and participating, and allowing me to participate as well. 

As the Chairman mentioned, the House Natural Resources 

Committee has held several hearings on the Endangered Species 

Act with the goal of finding common ground with respect to this, 

what many believe is an outdated Federal policy. We are here 

today to better understand the Endangered Species Act and the potential consequences to the Commonwealth that a recent Obama 

administration proposed listing under the ESA of the Northern 

Long-Eared Bat. The proposed listing affects Pennsylvania as well 

as 37 other states, and it will directly impact hundreds, if not thousands, of acres in Pennsylvania and business activities on them. 

It is my concern that the Federal listing of this scope and magnitude should not be driven by arbitrary court settlement deadlines, or be based upon unpublished or sketchy data or personal 

opinions by Federal bureaucrats. It is vitally important that these 

decisions are carefully and openly scrutinized and sound, scientific 

7 

data is used. It is also my understanding that the Center for 

Biological Diversity, the group seeking to list the bat under the 

ESA, acknowledges that they do not know much about the current 

population trends, yet they suggest the root cause is farming, coal 

mining and natural gas exploration. With that said, it has recently 

come to light that the primary cause in the decline of the bat population is the result of White Nose Syndrome, a disease transmitted 

through other bats. Because this is a relatively newly discovered 

disease, it is too soon to tell from the little currently available 

Federal, state and other scientific research what the extent of the 

disease’s impact has on long eared bats. With only the data from 

about half of the states where the disease has been found, isn’t it 

a bit premature for the Fish and Wildlife Service to conclude that 

the bat is endangered in 38 states? Instead of first focusing on 

mitigating the bat-caused disease, the Service issued guidance 

which focused on ensuring that every human-related activity that 

could possibly interfere or disturb hibernating bats is regulated or 

restricted. For example, the Service’s guideline recommends no 

trees be cleared during certain times of the year within a 5-mile 

radius of bats; no noise disturbances be allowed within a 1-mile 

radius; no impacting water resources flow into bat hibernating 

areas during winter; no proscribed burning; no removal of bats 

from occupied homes or structures. And I just want to highlight 

that, if anyone has ever had a bat in their house, no removal of 

bats from occupied homes or structures. So if you have one flying 

around your living room, or your bedroom, if you ever woke up that 

way, and I have, you—— 

VOICE. So have I. 

Mr. PERRY [continuing]. Turn the light back off and roll back 

over and go to sleep, you and the bat are going to coexist in your 

house. No use of pesticides or herbicides, and no wind turbine operations that could harm the bats. Additionally, many state entities 

have not been included in the administration’s review process, and 

I believe that the proposed listing may go too far. Our own 

Pennsylvania Game Commission recently stated the measure 

would inhibit many forest management activities, and have major 

adverse impacts to the state’s ability to manage our lands for the 

diversity of wildlife species under our jurisdiction. That is our own 

Game Commission, and the diversity of all wildlife species under 

their jurisdiction. I hope we can simply take a closer look at the 

Endangered Species Act and ensure that all proposed decisions to 

list a species be met with scientific data and not a knee jerk reaction. The proposed listing could mean significant changes to 

Pennsylvania’s economy and energy industry and jobs, while most 

importantly doing little, if absolutely anything, to help the declining population of Long Eared Bats. 

I look forward to hearing the expert witnesses, and thank 

Chairman Hastings and Mr. Thompson for bringing this important 

issue right to Pennsylvania. Thank you, Mr. Chairman. 

The CHAIRMAN. I thank the gentleman for his statement. And for 

those of you that—and I thank both of you for your sentiments on 

my leaving Congress. I am finishing 10 terms in Congress and not 

seeking reelection, but I just want to remind my colleagues I am 

not dead yet, and I have until—I think I have until 11:59 on 

8 

January 3 before my term is completely over, so I intend to be active until that time. 

I want to welcome the panelists in front of us, and just kind of 

lay the ground rules. You see this timing light up here. I assume 

you can read that on the other side, is that correct? Can you read 

that on the other side? Yes. Well, is that showing on the other 

side? 

VOICE. Yes. 

The CHAIRMAN. OK, you can see it? All right, what that simply 

means is that we have—ask all of you to keep your oral opening 

remarks within a 5-minute time period. Now, your written remarks 

are part of the statement, so your full written remarks are there, 

and if you could summarize or whatever you want to highlight 

within that, we appreciate that very much. And for those of you in 

the audience that aren’t on the panel, and obviously, those of you 

in the audience aren’t on the panel, there are comment forms at 

the entrance to this room, and you can comment on that and send 

that in, or you could go to our Web site which is 

www.naturalresources.house.gov, under ‘‘Contact Us,’’ and make a 

statement. So we would like to hear from you in that regard. 

Now, we do have a distinguished—and by the way, the way that 

5-minutes works is, if the green light is on, then that means, boy, 

you are just doing swimmingly well. And then the yellow light 

comes on, and that means you are down to a minute. And it is kind 

of like a traffic light; when the red light comes on, you need to 

speed up or stop, one or the other. So that is how that whole—all 

works. Now, obviously, we want you to make sure you complete 

your statement, but that is kind of the ground rules. 

Now, we do have a distinguished panel. Let me introduce all of 

you and then we will go and introduce each of you for your statement. We have The Honorable Jeff Pyle who represents the 60th 

District in the House of Representatives, and I understand that is 

Armstrong, Indiana and Butler Counties. Mr. Russ Biggica. Did I 

say that correct? I did? Director of Government and Regulatory 

Affairs with the Pennsylvania Rural Electric Association. Mr. Louis 

D’Amico, President and Executive Director of the Pennsylvania 

Independent Oil and Gas Association. Mr. Jim Brubaker, Board 

Member for the Pennsylvania Farm Bureau, Union County Farmer 

out of Lewisburg, Pennsylvania. Mr. John Stilley, Owner and 

President of Amerikohl Mining in Butler, Pennsylvania. Ms. Mollie 

Matteson, Senior Scientist for the Center for Biological Diversity 

out of Richmond, Vermont. Mr. Martin Melville, Owner of Melville 

Forest Services in Centre Hall, Pennsylvania, and Mr. Paul 

Lyskava, Executive Director of the Pennsylvania Forest Products 

Association here in Harrisburg. 

And with that, let me recognize Representative Pyle, I knew I 

would get that, I—see how fleeting time is? You just never know. 

Mr. Pyle, you are recognized for 5 minutes, and once again, your 

full statement will appear in the record. 

9 

STATEMENT OF THE HONORABLE JEFF PYLE, REPRESENTATIVE, DISTRICT 60, PENNSYLVANIA HOUSE OF REPRESENTATIVES, ARMSTRONG, INDIANA AND BUTLER COUNTIES 

Mr. PYLE. Thank you very much, Chairman, and don’t let that 

confusion bother you. Us House Reps guys normally don’t get invited into Senate hearing rooms, so thanks for that. 

I am going to summarize my written remarks and try to be quick 

and draw directly from them. 

My name is Jeff Pyle, I represent the 60th Legislative District 

of Pennsylvania. As the Chairman pointed out—Armstrong, Butler 

and Indiana Counties, which is roughly 200 miles west of here. Our 

county is bisected directly in half by the Allegheny River which is 

a whole other ESA issue, but not for now. 

At hand is an increase in the protections and classifications of 

the Northern Long-Eared Bat, and as all three of the congressmen 

present beautifully summarized, they are being slain by White 

Nose Syndrome in things that can be roughly likened to a Biblical 

plague. The mortality rates are in the upper nineties. Here is the 

weird part about it. The White Nose Syndrome is transmitted only 

by actual physical touch. Well, if you know how bats conserve heat 

in their hibernacula, in their cage or in their dwellings, they huddle together because there is almost no fat on a bat, and when they 

do this huddling, this White Nose Syndrome transmits one to another throughout the entire colony of bats in very little time. What 

I am telling you is they instinctively pass this back and forth between each other and can’t stop. 

Now, we have looked at White Nose Syndrome in this Commonwealth for a good 10 years. I suppose why I am here is because of 

our experiences with the Indiana Bat. A few years ago, Ford City 

and Kittanning, which are both towns in Armstrong County, decided to consolidate high schools, and I kid you not, after 100 years 

of Ford City being in existence. A family stepped up, donated a 

whole bunch of land up in the perfect location on a mountaintop 

separating two towns that have had a blood feud reminiscent of the 

Hatfield and McCoys for a very—how Dad from Kittanning met 

Mom from Ford City was just—nobody can figure it out. Anyway, 

we go up to build this school, and the next thing we know, there 

are people from U.S. Fish and Wildlife Service and they said, well, 

you can’t build right there, you are in a bat range, and we said, 

what do we have to do, and they had us hang the gigantic mist 

nets for hundreds and hundreds of yards in the trees, and they 

stayed up there, I know my testimony says weeks, but upon further 

review it was actually months, and they didn’t catch any bats. So 

we are figuring that is great, let’s get this school built. This is kind 

of cool. My eldest daughter will be the last graduating class from 

Ford City High School, and my youngest will be the first graduating class from the new Armstrong High School. I think this is 

a great opportunity, but that wasn’t meant to be. 

Apparently, for us to be able to put up our new school, which is 

paid for by taxpayer money, this is not coming out of a private company or a big evil corporation, these are taxpayers, for us to be able 

to get a permit to move ground up on top of that hill they said that 

is fine, give us $60,000 so we can go buy offset acreage somewhere 

else so the bats can play and reproduce and frolic and do what bats 

10 

do; eat bugs. And as a side note, Mr. Chairman, my cousin, Kenny, 

used to eat bugs, but that is neither here nor there. 

Here is the crux of the matter. Take this the right way, and I 

mean no disrespect. You have created a government within a government. These people are self-regulating through the use of promulgated rules. You don’t even know when they are coming. I will 

give you an example. A couple of years ago here in Pennsylvania, 

with our own Game Commission, there was talk of them classifying 

the Little Brown Bat on this list. Most people know that as the 

Common House Bat, and as was brought up in the early intros, I 

have had bats in my houses, and as I told this gentleman, I haven’t 

played tennis for 20 years, but that old Wilson is still in the corner 

because we have had a lot of bats come through the house. And 

when your wife is sleeping with your 6-month-old, everything else 

pales except getting that bat out of the room. 

I see the yellow light on so I am going to try to get it very closely 

wound down here. 

Here is the deal, boys. Until you change ESA, they can pretty 

much do whatever they want to do, and that big green blotch up 

there represents about one-third of North America, if I am not mistaken. At what point does homo sapien start to matter? They are 

telling people who have owned family land for over 200 years in 

Armstrong County that they can’t take down their own timber for 

5 months a year, that happened to be right over the heart of summer when you can go cut timber. Are you kidding? Sir, at some 

point—and I love the animals as much as anybody. Some I find 

cute and cuddly, and some I find delicious, but—and I see the red 

light on, so thank you very much for your time. 

I would love to answer any questions. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Pyle follows:] 

PREPARED STATEMENT OF THE HON. JEFFREY PYLE, STATE REPRESENTATIVE, 

PENNSYLVANIA HOUSE OF REPRESENTATIVES, 60TH LEGISLATIVE DISTRICT

Good morning. My name is Jeffrey Pyle. For the last 10 years I have served the 

good people of the 60th Legislative District (Armstrong, Indiana and Butler 

Counties) in the Pennsylvania State house. During this tenure, I have served on our 

Environmental Resource and Energy Committee for a decade and currently chair its 

subcommittee on mining and as the majority member on the Mining Reclamation 

Advisory Board. From these roles and others I have become quite familiar with today’s topic and hope that my time here is seen by the esteemed panel as informative 

and helpful. 

I’m told the purpose of this hearing is a change in listing for the Northern LongEared bat. I suppose I’ve been called because of my experience with another federally endangered bat, the Indiana bat. Before I can fully explain this, a bit of 

background is necessary. My home is Armstrong County which lies roughly 200 

miles west of Harrisburg, northeast of Pittsburgh. Armstrong County is bisected almost in half lengthwise by one of the rivers that forms the Ohio in Pittsburgh, the 

Allegheny River. The Allegheny is a global oddity—one of only two gravel bottom 

rivers in the World due to its role as a main drainage channel for the retreating 

glaciers during the last Ice Age. The County is blessed by abundant agriculture, 

ample water supplies, broad blanket forests, tremendous coal, shallow gas, shale 

gas, various rock aggregates and 70,000 of the most red, white and blue Americans 

you will ever meet. We are former rust belt that has not recovered but are doing 

our best with what we’ve got. A huge part of our citizens’ employment is in natural 

resource recovery of the aforementioned. It is not an exaggeration to say that a few 

years ago, before the Clean Air Act killed our power plant, we heated the East Coast 

and never failed to make the lights come on. The county seat and largest town is 

Kittanning (pop. 4600) and its second largest is Ford City (pop. 3400) just 3 miles 

away. Two years ago, a new school board voted to close each town’s high school and 

11 

build a new combined one for both towns’ students on a location high upon a mountain separating both towns and gazing over miles of the Allegheny and the first new 

school for Kittanning since 1955 and Ford City since 1908. A generous donation of 

hundreds of acres of land by a family dedicated to education would be the site. 

That’s when I learned about the Environmental Protection Agency’s federally protected endangered Indiana bat. 

When the architects and engineers first entered the site to survey and what not, 

they were informed the building site was in a zone inhabited by federally protected 

Indiana bats and that special procedures would be needed at, of course, the school 

district’s expense. This entailed doing a bat study in which finely meshed mist nets 

would need to be hung over hundreds of yards from the trees to accurately measure 

the presence on the property of Indiana bats and determine the remediation efforts 

that would be required. A few weeks after the nets were hung, they were studied 

and it was found that there were no bats BUT because the building site was located 

in their presumed feeding range, there would have to be considerations made by the 

school district to the EPA so that we could build the school. It seemed to matter 

not that no bats were found; for us to build our school, it would cost us a little over 

$60,000 so that the EPA could go purchase and set aside land somewhere else for 

the Indiana bats since our new school building apparently disturbed their ability to 

frolic and prosper even though they weren’t there at the time. No bats, no problem—pony up $60K and you can fire up the dozers. That’s how it went down. 

All bat populations in the Commonwealth are currently experiencing their own 

Ebola-like plague called White Nose Syndrome. It is viral in nature and thus defies 

and escapes our ability to cure it. From what we know of it, it started up in New 

England and worked its way down the Appalachians to us. It is not harmful to humans but does a real number on bats who, instinctively, huddle very close together 

to conserve body heat. Therein is the transmission point of the virus. Like Ebola, 

it is instinctual direct huddling and touch of an infected bat to another and after 

that, they’re going to die in amazingly high percentages. We’ve seen it here in 

Pennsylvania and cannot stop it. We’ve had researchers at our universities look for 

a cure and they haven’t found it yet. White Nose Syndrome will continue to work 

its way down the mountains until roughly 85 percent of all the bat population on 

the East Coast is decimated. To sum up, their instincts encourage them to transmit 

an incurable virus among themselves and they are going to be nearly wiped out and 

we can do almost nothing about it. That’s the straight hard facts. 

If the EPA’s classification of the Northern Long-Eared bat rises, there will be 

changes to how you live your lives. As I learned from a former PA Department of 

Environmental Protection administrator who now holds a prestigious position in 

Pittsburgh with an environmental lobbying group, it’s not whether the bats live 

there or not (as happened to us), it’s about habitat—could the endangered bat in 

question utilize the area to re-establish itself and come back to a healthy population. It is rhetorical in nature as the White Nose Syndrome will do exactly as has 

been described but it has not deterred neither the EPA nor the PA Game Commission (who administers our endangered species program and tells everyone it’s the 

DEP) who, nonetheless, have drawn the ‘‘supposed’’ ranges of the bats in large outlines all over a map of the Commonwealth. Within those boundaries, those ranges, 

anyone wishing to perform seemingly any kind of outdoor activity must submit to 

the conditions prescribed by our various rule promulgating agencies because of 

being located in the bat’s yard. Great trouble is encountered in that bats, being airborne creatures, move over great distances and create immense outlines where 

human activity is highly regulated. To compound the great range, the roosting of 

the various bat species takes place in abandoned homes, trees and just about anywhere that’s got a half-inch crack that will let them stay dry. Those are also protected places which puts our ability to tear down urban blighted properties. To limit 

human activity within a 3 to 10 mile radius of every pine tree (where little Brown 

bats roost) in Pennsylvania covers just about the whole place and again, it’s not 

whether or not you find the endangered creature there, it’s could they live there? 

If my testimony has angered any of these agencies enough for them to take a closer 

look at Armstrong County, they will find that our abundant food and water sources, 

coupled with a rugged hill and valley strata covered by dense forest, would be an 

ideal habitat for Bigfoot. Using the ‘‘we don’t have to actually find them, just call 

it habitat and extort huge fees that jeopardize jobs’’ approach currently in use, they 

could do it and the part with which you should concern yourselves with is how you, 

the House of the people, can’t stop them. 

EPA is a rule promulgating agency just like the Pennsylvania Game Commission 

and Fish and Boat Commission. In short, they can make rules that hold the force 

of law without you even knowing unless you monitor and read the correct bulletins. 

Executive directors execute these rules at the behest of the appointed EPA adminisVerDate Mar 15 2010 11:33 Jun 25, 2015 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 J:\00 FULL COMMITTEE\00SE08 2ND SESS. PRINTING\89831.TXT DARLEN
12 

trator or game commissioners. In Pennsylvania, these game commissioners are chosen by the Governor’s nomination and our Senate’s confirmation. At no time does 

that House of Reps have any role in any of the process. Of interest to this discussion 

is that our game commissioners are non-elective yet hold the power to make rules 

that hold the force of law. To point, in addition to the Federal EPA’s endangered 

list, the Commonwealth maintains an additional list of threatened or endangered 

species that they consider endangered. I say ‘‘they’’ because none of the listings are 

ever subjected to a governmental OR public vote. They can just do it and they do. 

As a personal note, I see no salient logic as to why the state snake of Arizona (the 

massasauga rattlesnake) is a protected species in Pennsylvania. Using the same 

logic, we better get cracking on designating the Timber Wolf and Buffalo because 

I’m sure both lived here a long, long time ago. 

I recently offered legislation that would have required the Commonwealth’s handling of species of concern in a more open manner. One of the things my bill would 

have done was require our Game Commission and Fish and Boat Commissions to 

open up their confidential database of identified species locations to allow interested 

developers to learn whether or not the land being considered for development hosted 

endangered species that would require additional financial investment to establish 

the dictated remediations. I felt it served the spirit of caveat emptor—the buyer 

beware—and allow them to do their due diligence of quantitative and qualitative 

data from a confidential protected database PRIOR to the execution of sale on the 

property. It struck me as innately fair—one does not buy a car without kicking the 

tires. The measure was strongly opposed by mainly west coast environmental groups 

and their Pennsylvanian chapters who emailed with vengeance that this part of the 

bill made me a genocidal maniac and once created a picture of me in a Batman costume standing in front of scorched Earth (not buff Batman—the Adam West batman). Apparently I struck a nerve as their goal, as a rulemaking agency that holds 

force of law without accountability to the public in any shape or fashion, was to protect their ability to ‘‘ambush’’ developers with financial demands but these couldn’t 

be made until after the purchase was finalized. Being a genocidal maniac I can’t 

really speak from authority, but that’s just how the 10-year observation appears. 

Panel, my family has lived in Armstrong County since before it was Armstrong 

County (1803). We have farmed its fields, dug its coal, made its steel and taught 

its kids for over 200 years. Whenever our Nation called us to go fight we did and 

often spilled blood the whole way from Germantown and Antietam to Kuwait. To 

think that a distant unelected body can dictate to us when we can and cannot cut 

our standing timber on our own land according to a bat’s mating schedule is simply 

preposterous. It wouldn’t be so bad if there was some kind of recourse to protest 

these rulings made so far away by people who have never been here who really don’t 

give a hoot whether the citizens of Armstrong County have jobs is wholly and comprehensively unacceptable. The ESA encourages us, who have such a dynamic and 

deep grasp of patriotism, to become lawbreakers in the Nation we’ve gone to fight 

for. It has to stop. That folks who don’t live here can profess to know what’s best 

for us is ridiculous and exposes to me only one thing: ideological positioning and 

defense for animals that don’t affect the area and people who live around them exposes only their hollow ‘‘supremacy’’ that they cannot justify when questioned. 

Seriously, do you think Philadelphia would shut down Independence Mall if they 

found an endangered bat there? I think not. 

It defies logic that our care for one animal has become so trivial. We know we 

cannot cure white nose syndrome yet nonetheless, we advance a ruling on yet another species that means more than homo sapien. 

Thank you for your time and attention and I eagerly await your questions should 

you have any. 

The CHAIRMAN. Thank you very much, Representative Pyle. We 

appreciate your testimony. 

Mr. Biggica, you are recognized for 5 minutes. 

13 

STATEMENT OF RUSS BIGGICA, DIRECTOR, GOVERNMENT 

AND REGULATORY AFFAIRS, PENNSYLVANIA RURAL 

ELECTRIC ASSOCIATION, HARRISBURG, PENNSYLVANIA 

Mr. BIGGICA. Thank you, Mr. Chairman, and good morning to 

you and to the committee members. My name is Russ Biggica and 

I am the Director of Legislative and Regulatory Affairs at the 

Pennsylvania Rural Electric Association, and I appreciate the opportunity to address you today. 

The National Rural Electric Association has submitted comments 

to the U.S. Fish and Wildlife Service, which I have submitted to 

the committee, and we, the Pennsylvania Rural Electric 

Association, appreciate this opportunity. 

Let me first quickly explain our organizational chart. NRECA is 

the national service organization for more than 900 not-for-profit 

rural electric cooperatives that provide electricity to 42 million people in 47 states. As for us in Pennsylvania and New Jersey, we 

supply electricity and distribution services to more than 230,000 

rural households and businesses, representing more than 600,000 

consumers. The 13 rural electric cooperatives in Pennsylvania 

alone own and maintain 13 percent of the electric distribution lines 

in the state, covering nearly one-third of the Commonwealth’s land 

area in 42 of 67 counties in Pennsylvania. Cooperatives in 

Pennsylvania average about 7 consumers per mile, while investorowned utilities, as an example, average anywhere from 30 to 40 

customers per mile. 

As a side point, rural electric cooperatives have the lowest 

electricity rates in both states. 

PREA and NRECA understand the Fish and Wildlife’s concerns 

for the Northern Long-Eared Bat presented by the disease, the 

White Nose Syndrome, as outlined in this proposal. While there 

may be compelling reasons for listing the bat as threatened and endangered, all rural electric cooperatives affected have concerns 

regarding the guidelines for its compliance as it relates to the proposed listing. Our concern centers on electric cooperatives’ obligations to public safety, maintaining electrical reliability, and legal 

requirements under the Energy Policy Act of 2005 and NERC’s 

vegetation management standards, which I have outlined in our 

submitted comments. 

To summarize our concerns, the bat’s habitat, including suitable 

roost trees, may occur in or near electric utility rights-of-way 

posing a risk to power lines. Electric cooperatives identify and remove these danger trees that are growing into power lines, or at 

risk of falling into a power line, every year, often on an emergency 

basis. Co-ops remove danger trees throughout the spring, summer 

and fall months, when access is possible and some of the heaviest 

demands on our electric system occur. Unfortunately, Committee, 

this is the same time that the bats occupy them as well. 

If the Fish and Wildlife Service lists the Northern Long-Eared 

Bat as endangered, rural cooperatives have concerns that the prohibitions of the unauthorized take of listed species and habitat will 

be at odds with electric cooperatives’ public and legal obligations to 

remove danger trees in order to maintain the safety and reliability 

of power lines. NRECA, our national, believe this listing will affect 

potentially 650 distribution co-ops and G&Ts within the bat’s 39 or 

14 

38-state range. The importance instead of this problem requires a 

national solution for electric cooperatives. 

Because of what we see as a potential conflict between requirements to maintain reliable power by removing certain trees or 

other vegetation that threatens transmission and distribution lines, 

and the requirement to protect listed species and their habitat, 

rural electric cooperatives are committed to working with the Fish 

and Wildlife Service and other immediate stakeholders to develop 

such a result. 

In closing, I wish to thank the committee for allowing PREA to 

comment and offer dialogs toward a solution. The Pennsylvania 

and New Jersey cooperatives and its members believe that rural 

electric cooperatives must do their part in protecting the environment, while at the same time ensuring for safe and reliable electric 

service to the rural communities they serve. We believe this commitment may continue by actively working with the Fish and 

Wildlife Service to develop and ensure that an effective commonsense approach is taken for the overall protection of the Northern 

Long-Eared Bat, at the same time, allowing cooperatives the opportunity to protect and serve their consumers. 

Thank you, Mr. Chairman. 

[The National Rural Electric Cooperative Association comments 

submitted for the record by Mr. Biggica follow:] 

LETTER SUBMITTED FOR THE RECORD BY MR. BIGGICA

NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION, 

ARLINGTON, VA 22203, 

AUGUST 29, 2014. 

Public Comments Processing 

ATTN: FWS–R5–ES–2011–0024 

Division of Policy and Directives Management 

U.S. Fish and Wildlife Service 

4401 Fairfax Drive, MS 2042–PDM 

Arlington, VA 22203 

Submitted Electronically via eRulemaking Portal to FWS–R5–ES–2011–0024 

SUBJECT: Comments on Listing the Northern Long-Eared Bat as an Endangered 

Species; Proposed Rule, 78 Fed. Reg. 36698 (June 30, 2014), Docket No. FWS– 

R5–ES–2011–0024 

The National Rural Electric Cooperative Association (NRECA) respectfully submits the following comments in response to the above-referenced notice and request 

for comment from the U.S. Fish and Wildlife Service (FWS). We appreciate the opportunity to submit comments on the proposed rule to list the Northern Long-Eared 

Bat (NLEB) as an endangered species under the Endangered Species Act of 1973, 

as amended (ESA). 

NRECA is the national service organization dedicated to representing the national 

interests of cooperative electric utilities and the consumers they serve. NRECA is 

the national service organization for more than 900 not-for-profit rural electric utilities that provide electric energy to over 42 million people in 47 states or 12 percent 

of electric customers. The vast majority of NRECA members are not-for profit, consumer-owned cooperatives. NRECA’s members also include approximately 65 generation and transmission cooperatives, which generate and transmit power to 668 

of the 838 distribution cooperatives. The G&Ts are owned by the distribution cooperatives they serve. Remaining distribution cooperatives receive power directly 

from other generation sources within the electric utility sector. The typical distribution co-op is a small business that serves 13,000 consumers. Electric cooperatives 

own and maintain 2.5 million miles or 42 percent of the nation’s electric distribution 

lines, covering 75 percent of the U.S. landmass. Both distribution and G&T cooperaVerDate Mar 15 2010 11:33 Jun 25, 2015 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 J:\00 FULL COMMITTEE\00SE08 2ND SESS. PRINTING\89831.TXT DARLEN
15 

1http://www.nerc.com/files/FAC-003-3.pdf 

tives were formed to provide reliable electric service to their owner-members at the 

lowest reasonable cost. 

NRECA understands the FWS’s concerns for the NLEB presented by the disease 

white-nose syndrome as outlined in the proposed listing. While we agree that there 

are compelling reasons for listing the NLEB as threatened or endangered, NRECA 

has concerns regarding the guidelines for compliance with the ‘‘Northern Long-eared 

Bat Interim Conference and Planning Guidance,’’ and with the proposed listing of 

the species as endangered. Our concern centers on the electric cooperatives obligations to public safety, maintaining electric reliability, and legal requirements under 

the Energy Policy Act of 2005 and the North American Electric Reliability 

Corporation Transmission Vegetation Management standards (FAC–003–3).1

NLEB habitat, including suitable roost trees, may occur in or near electric utility 

rights-of-way posing a risk to power lines. Electric cooperatives identify and remove 

these danger trees—any trees that are growing into a power line or at risk of falling 

into a power line—every year, often on an emergency basis. Co-ops remove danger 

trees throughout the summer months when access is possible and the heaviest demands on the electrical system occur, unfortunately at the same time as NLEB potentially occupy them. Many of the trees are dead or dying, and must be quickly 

removed to maintain safe and reliable electrical power. When conditions are dry, 

trees near power lines also can cause serious fires. 

If the FWS lists the NLEB as endangered, NRECA has concerns that the ESA 

section 9 prohibition of the unauthorized ‘‘take’’ of listed species will be at odds with 

electric cooperatives’ public and legal obligations to remove danger trees in order to 

maintain the safety and reliability of power lines, both transmission and distribution. Illegal take can give rise to criminal enforcement, civil administrative penalties 

and civil judicial action for injunctive relief. 

A final listing of the NLEB appears to immediately trigger this double jeopardy 

issue with one regulatory agency requiring a utility to trim or remove vegetation 

(NERC) and another regulatory agency preventing a utility from doing so (FWS). 

NRECA believes this listing will affect potentially 650 distribution co-ops and G&Ts 

within the NLEB’s 39-state range. The importance and extent of this problem requires a national solution for electric cooperatives. 

Because of what we see as a potential conflict between two legal requirements— 

the requirement to maintain reliable power by removing certain trees or other vegetation that threaten transmission and distribution lines and the requirement to 

protect listed species and their habitat—NRECA recommends that FWS work with 

electric cooperatives to identify a means by which cooperatives will be able to meet 

both of these legal obligations simultaneously. NRECA is committed to working with 

the FWS and other immediate stakeholders to develop such a result. 

Sincerely, 

CAROL E. WHITMAN, PH.D., 

Senior Legislative Principal, 

Environmental Issues. 

The CHAIRMAN. Thank you very much, Mr. Biggica. I appreciate 

your testimony. 

Mr. D’Amico, you are now recognized for 5 minutes. 

STATEMENT OF LOUIS D’AMICO, PRESIDENT AND EXECUTIVE 

DIRECTOR, PENNSYLVANIA INDEPENDENT OIL AND GAS 

ASSOCIATION, WEXFORD, PENNSYLVANIA 

Mr. D’AMICO. Thank you. Good morning and thank you, 

Chairman Hastings, Congressman Thompson and Congressman 

Perry. 

My name is Lou D’Amico and I am President and Executive 

Director of the Pennsylvania Independent Oil and Gas Association, 

otherwise known as PIOGA. I appreciate the opportunity to be here 

today, and want to provide this brief statement concerning my 

written testimony—— 

16 

The CHAIRMAN. Mr. D’Amico, did you press the—turn the 

microphone on there? 

Mr. D’AMICO. Yes. 

The CHAIRMAN. It is on? 

Mr. D’AMICO. Yes. 

The CHAIRMAN. OK, you have to get a little bit closer. 

Mr. D’AMICO. Is that better? 

The CHAIRMAN. That is much better, thank you. 

Mr. D’AMICO. All right. I will be the first to admit that our industry faces legitimate development issues, but the U.S. Fish and 

Wildlife Service’s listing of the Northern Long-Eared Bat is not one 

of them. 

I use the term fiasco intentionally because I am amazed that the 

Service continues down the path to endangered listing for this bat, 

in spite of its own conclusions that objectively point the other way. 

If I were a part of the Service’s effort on this, I would be embarrassed that this matter has proceeded this far and that this hearing is even required. 

Detailed in my written testimony, the Service admits that the 

White Nose Syndrome, which is a fungal disease discovered in New 

York in 2006, with currently no known cure, alone has led to dramatic and rapid population level effects on the NLEB. The Service 

also admits that oil and gas exploration and development activities 

do not have population-level effects on the bat, even when combined with the effects of all other land development activities 

throughout the Northern Long-Eared Bat’s range. The Service also 

admits that the White Nose Syndrome Disease has spread to only 

a portion of the range of the Northern Long-Eared Bat. Significant 

impacts to the species from the disease have been reported only in 

a fraction of that portion of the range, and the Northern LongEared Bat continues to be prevalent in a majority of its broad 38- 

state range, regardless of the impacts of White Nose Syndrome, 

and of course, any impacts from land development activities including oil and gas development. Numerous state government commentators have already explained in their comments that White 

Nose Syndrome has little or no effect on the bat in many areas 

where it has been detected, and my written testimony explains why 

the NLEB’s population outside of the limited areas where White 

Nose Syndrome reportedly has affected the species is more than 

sufficient to be resilient to White Nose Syndrome. 

Finally, the Service’s principle tool to aid the recovery of listed 

species is habitat protection. So, typically, the Service designates 

critical habitat when listing a species, but the Service has not designated critical habitat as part of this listing. The Service could 

hardly do otherwise in view of its admission that even if all habitat-related stressors were limited—eliminated or minimalized, the 

significant effects of White Nose Syndrome on the Northern LongEared Bat would still be present. 

In closing, PIOGA urges the committee to do everything in its 

power and within the power of its individual members to correct 

the wrong course the Service is on, and require the Service to identify methods for the management of White Nose Syndrome and protection of the Northern Long-Eared Bat from its effects, other than 

listing the NLEB as endangered or even threatened. 

17 

Thank you for allowing me to speak today. 

[The prepared statement of Mr. D’Amico follows:] 

PREPARED STATEMENT OF LOU D’AMICO, PRESIDENT & EXECUTIVE DIRECTOR, 

PENNSYLVANIA INDEPENDENT OIL & GAS ASSOCIATION

My name is Lou D’Amico and I am the President and Executive Director of the 

Pennsylvania Independent Oil & Gas Association (‘‘PIOGA’’). I am grateful for the 

invitation to testify today before the committee regarding the proposed listing of the 

northern long-eared bat (NLEB) as endangered under the Endangered Species Act 

(ESA) by the U.S. Fish and Wildlife Service (FWS). 

PIOGA is a non-profit trade association, with nearly 1,000 members, representing 

Pennsylvania independent oil and natural gas producers, marketers, service companies and related businesses, landowners and royalty owners. PIOGA members are 

subject to Federal and state laws for the protection of listed bat and other protected 

species. The association and our members have a direct interest in FWS’s proposal 

to list the NLEB as an endangered species, given the oil and gas development and 

production operations that PIOGA’s members are undertaking within the potential 

range of the NLEB in Pennsylvania. These operations, including clearing trees and 

building roads, are constrained and directed by environmental laws regarding permits and species protection, as well as by property and contract law. 

The economic benefits from the oil and gas industry have been described as economically ‘‘transformative’’ for not only Pennsylvania communities, but for those 

across the country who are the beneficiaries of abundant and stable natural gas 

supplies. It is estimated that the oil and gas industry operating in the Marcellus 

Shale region employs 232,000 people with an average salary of $83,000 per year. 

Between 2010 and 2012, approximately $31.5 billion dollars were invested in the region as a result of industry activity, with $1.8 billion in state tax revenue generated 

since 2006. 

In addition, the energy generated in the Marcellus Shale region is playing a pivotal role in what has been described as a manufacturing renaissance. A recent study 

from IHS Global Insight entitled, ‘‘America’s New Energy Future: The Unconventional Oil and Gas Revolution and the Economy—Volume 3: A Manufacturing 

Renaissance,’’ notes the revolutionary economic benefits that have accrued to households, communities, and manufacturers across the country as a result of this stable 

and plentiful supply of energy. The most recent update to the study includes the 

following significant national economic impacts of this development: 

• Unconventional oil and gas will steadily increase U.S. competitiveness, 

contributing $180 billion to the U.S. trade balance by 2022. 

• Increased disposable household income by $1,200 in 2012, rising to $3,500 in 

2025; 

• Generated $74 billion in government revenues in 2012, rising to $138 billion 

in 2025; 

• Attracted U.S. capital investments totaling $121 billion in 2012, rising to 

$240 billion by 2025; 

• Contributed $284 billion to the U.S. GDP in 2012, rising to $533 billion by 

2025; and Supported $150 billion in earnings for U.S. workers in 2012, rising 

to $269 billion by 2025. 

PIOGA believes this background of Marcellus Shale development and its driving 

role in creating tremendously significant economic benefits both regionally and nationally are an important context as the committee considers the potential impacts 

of a listing decision regarding the NLEB. 

I. The proposed listing of the NLEB is not based on the best available 

scientific and commercial data. 

PIOGA, together with the Pennsylvania Chamber of Commerce, commented on 

FWS’s proposed listing of the NLEB. A copy of those comments is provided for the 

record as Attachment No. 1 to this testimony. In those comments, we expressed our 

deep concern that the proposal was not based on the best available scientific and 

commercial data, as the ESA requires. As we noted, the proposal is based on numerous unpublished studies and sources of data that have not been peer reviewed. We 

urge the committee to use its influence to ensure that this substantial deficiency in 

the proposal is corrected. The ESA’s requirement that FWS base its listing decisions 

on the best available scientific and commercial data available is the most important 

check on FWS’s authority and FWS should not be allowed to ignore it. 

18 

II. Section 7(a)(4) conferencing reviews and conferences should not be 

required. 

In the meantime, even though the proposal is not based on the best available data 

and even though it has not been finalized, this committee should be aware that the 

proposal is already significantly adversely impacting the operations of our member 

companies. This is because FWS has instructed its field offices and other Federal 

action agencies to conduct—pending the finalization of its proposed listing—costly 

and time consuming ESA Section 7(a)(4) conferencing reviews for all activities 

proposed to take place within the NLEB’s 39 state range (including D.C.) to determine if the proposed activity likely will jeopardize the continued existence of the 

NLEB, and to initiate a conference even if the activity is not likely to jeopardize the 

NLEB. This conferencing requirement—which requires coordination between at 

least two Federal agencies, evaluation of environmental studies and data, and legal 

and scientific analysis—has already needlessly and unlawfully imposed substantial 

expense and delays on oil and gas operators. 

This conferencing requirement is also clearly contrary to FWS’s regulations and 

guidance. FWS regulations define ‘‘jeopardize the continued existence of’’ to mean 

‘‘to engage in an action that reasonably would be expected, directly or indirectly, to 

reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that 

species.’’ 50 C.F.R. § 402.02. Moreover, FWS’s Endangered Species Consultation 

Handbook (pp. 4–36) provides that jeopardy determinations must be based on the 

effects of the proposed action to the entire population of a species range-wide: 

‘‘Adverse effects on individuals of a species . . . generally do not result in jeopardy 

determinations unless that loss, when added to the environmental baseline, is likely 

to result in significant adverse effects throughout the species’ range.’’ As explained 

below, FWS has already reached conclusions that preclude a ‘‘jeopardy 

determination.’’ 

In February of this year, PIOGA joined with eight other organizations in filing 

an emergency petition with FWS for an exemption for the oil and gas industry from 

the conferencing requirement. A copy of that petition, which requested action within 

30 days and to which FWS has not responded, is provided for the record as 

Attachment No. 2 to this testimony. 

In the petition, PIOGA and the other organizations made the following points: 

1. Section 7(a)(4) requires conferences between a project proponent and FWS 

only if it is determined that the proposed activity—not just any cause, such 

as a disease—is likely to jeopardize the continued existence of a species proposed for listing, pending the finalization of the listing. 

2. In the course of developing its listing proposal for the NLEB, FWS has already concluded that oil and gas exploration and development activities do 

not have population-level effects on the NLEB, even when combined with the 

effects of all other land development activities throughout the NLEB’s range. 

As FWS explained in its proposed listing, it is the white-nose syndrome ‘‘alone 

[that] has led to dramatic and rapid population level effects on the’’ NLEB. 

78 Fed. Reg. 61072. Accordingly, it is beyond dispute that the white-nose 

syndrome and not the effects of oil and gas activities is responsible for the 

decline of the NLEB. 

3. In light of this conclusion, neither the FWS nor the other Federal action agencies can reasonably or lawfully determine that any proposed oil and gas 

activity will likely jeopardize the NLEB. 

4. Therefore, the proponents of oil and gas activity should not be subjected to 

the section 7(a)(4) conferencing requirements before they can proceed with 

their projects. 

Accordingly, PIOGA urges the committee to use its influence to get FWS to immediately issue a programmatic finding of ‘‘no jeopardy’’ for all oil and gas exploration 

and development activities to be undertaken within the NLEB’s range before a final 

listing decision is made for the species. This action is necessary to put an end to 

the substantial costs that FWS is needlessly and unlawfully imposing on oil and gas 

operators and, ultimately, on the consumers of their products. Alternatively, FWS 

should grant the previously requested exemption, which would produce the same 

result. 

The FWS’s recently finalized (July 1, 2014) ‘‘rule’’ or ‘‘policy’’ interpreting the 

phrase ‘‘significant portion of its range’’ does not support listing the NLEB or requiring the Section 7(a)(4) conferencing reviews, even if the policy were applied here, 

which it shouldn’t. The lone population level risk to the NLEB—WNS—is confined 

to only a portion of the species’ range, and the species has reportedly incurred sigVerDate Mar 15 2010 11:33 Jun 25, 2015 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 J:\00 FULL COMMITTEE\00SE08 2ND SESS. PRINTING\89831.TXT DARLEN
19 

nificant effects from WNS in only a fraction of that area. Moreover, as numerous 

state government commentators have explained, WNS has had little or no effect on 

the NLE bat in many areas where it has been detected. Accordingly, the best available science demonstrates that the NLEB’s population outside of the limited areas 

where WNS reportedly has affected the species is more than sufficient to be resilient 

to WNS or any other potential impact. For example, the administrative record 

makes clear that (i) the species’ viability does not depend on the productivity of the 

population in any portion of the NLEB’s range and (ii) the population in the remainder of its range can maintain a sufficient growth rate to persist on its own. 

Nor does the segment of the NLEB population that has been affected by WNS 

contain important elements of genetic diversity without which the remaining population may not be genetically diverse enough to adapt to changing environmental 

conditions. If anything, the fact that NLEBs outside of the Northeast have not experienced significant impacts from WNS in areas where the disease is present suggests that the opposite is true. Put simply, there is no basis for the FWS to invoke 

its new ‘‘significant portion of its range’’ policy to support listing the NLEB or requiring Section 7(a)(4) conference reviews. 

III. The ESA is ill-suited to deal with the threat to the NLEB’s existence 

caused by the white-nose syndrome. 

The principal tool provided to FWS to aid in the recovery of listed species is habitat protection. Typically, FWS will designate critical habitat for a species and all 

Federal activities in that habitat will then have to insure that they do not destroy 

or adversely modify that habitat. That conventional approach does not fit the challenge posed by white-nose syndrome to the NLEB. 

Our members are concerned that if habitat protection is made the focus of a recovery plan for the NLEB, it will needlessly restrict their activities without benefiting 

the NLEB. As FWS has stated, the NLEB ‘‘is in danger of extinction, predominantly 

due to the threat of white nose syndrome’’ (emphasis added). 78 Fed. Reg. 61046. 

As FWS acknowledges, ‘‘[e]ven if all habitat-related stressors were eliminated or 

minimized, the significant effects of WNS on the northern long-eared bat would still 

be present.’’ 78 Fed. Reg. at 61061. The key factor at issue is disease, not oil and 

gas operations or other activities. A listing that leads to a recovery plan which concentrates on the designation and protection of critical habitat as it relates to oil and 

gas development and other activities is contrary to the express purpose of [the] ESA, 

which is to conserve species. 

We therefore urge the committee to require FWS to work with the wide range of 

public and private organizations that are concerned about the NLEB to identify 

methods other than the listing the NLEB or the designation of critical habitat for 

the management of white-nose syndrome and protection of the NLEB from its 

effects. 

Summary 

PIOGA and our member companies believe the proposed listing is unsupported by 

the facts and law and is not justified by the best available scientific and commercial 

data. We also believe that FWS must utilize its 6-month extension to subject the 

data to rigorous and transparent review by those in the scientific community, which 

will confirm the lack of scientific and legal justification for listing the NLEB. 

Accordingly, we also urge the committee to require FWS to determine that Section 

7(a)(4) conferencing reviews are unnecessary for oil and gas activities in light of the 

fact—documented by FWS no less—that oil and gas development activities will not 

place the NLEB in jeopardy anywhere, much less throughout its range. 

Finally, PIOGA suggests that if any final rule resulting in the listing of the species is adopted, it may not lawfully restrict activities, such as oil and gas development, that have no casual connection to WNS or otherwise threaten or endanger 

the NLEB. 

Attachments 

20 

ATTACHMENT 1 

December 23, 2013 

Via U.S. Mail and Docket Submittal at www.regulations.gov 

Public Comments Processing 

Attn: FWS–R5–ES–2011–024 

Division of Policy and Directives Management 

U.S. Fish and Wildlife Service 

4401 N. Fairfax Drive, MS 2042–PDM 

Arlington, VA 22203 

Re: Endangered and Threatened Wildlife and Plants; 12-Month Finding on 

Petition To List the Northern Long-Eared Bat and the Eastern SmallFooted Bat as Endangered or Threatened Species; Listing the Northern 

Long-Eared Bat as an Endangered Species—[Docket No. FWS–R5–ES– 

2011–0024] 

The Pennsylvania Independent Oil & Gas Association (PIOGA) and the 

Pennsylvania Chamber of Business and Industry (PA Chamber) respectfully submit 

the following comments regarding the U.S. Fish and Wildlife Service’s Status 

Review and request for comments on its 12-Month Finding on a Petition to List the 

Northern Long-Eared Bat as an Endangered Species but not to list the Eastern 

Small-Footed Bat as a Threatened or Endangered Species (the ‘‘Status Review’’), as 

published in the October 2, 2013 Federal Register (78 Fed. Reg. 61046). 

PIOGA is a nonprofit trade association, with nearly 1000 members, representing 

Pennsylvania independent oil and natural gas producers, marketers, service companies and related businesses, landowners and royalty owners. PIOGA members are 

subject to federal and state laws for the protection of listed bat and other protected 

species. The association and our members have a direct interest in the Service’s proposal to list the northern long-eared bat as an endangered species, given the oil and 

gas development and production operations that PIOGA’s members undertake within the potential range of the northern long-eared bat in Pennsylvania. These operations, including clearing trees and building roads, are constrained and directed by 

environmental laws regarding permits and species protection, as well as by property 

and contract law. 

The PA Chamber is the largest broad-based business advocacy association in 

Pennsylvania. Its thousands of members throughout the Commonwealth of 

Pennsylvania employ greater than 50 percent of Pennsylvania’s private workforce. 

Its membership ranges from Fortune 100 companies to sole proprietorships. 

Headquartered in Harrisburg, the PA Chamber serves as the frontline advocate for 

business on Capitol Hill by influencing the legislative, regulatory, and judicial 

branches of state government. Its mission is to improve Pennsylvania’s business climate for PA Chamber members. 

In summary, PIOGA and the PA Chamber believe that the Service does not have 

a legally or technically adequate basis to list the northern long-eared bat as endangered or threatened at this time. The listing proposal should be withdrawn or delayed until all current efforts to protect the species have been fully considered, and 

all of the assumptions, modeling, and uncertainties have been subject to peer review. We support and concur with the comments submitted in this matter by our 

other Pennsylvania extractive industry trade associations, the Marcellus Shale 

Coalition and the Pennsylvania Coal Alliance. 


89831.001.eps
21 

1See White-nose Syndrome.org, www.whitenosesyndrom.org/white-nose-syndrom-planning, 

which provides links to action plans from ten states. 2 ‘‘Critical habitat’’ is the habitat that is essential to the conservation of the species under 

Section 3 of the ESA. 16 U.S.C. § 1532(5). 

Comments 

1. The Status Review and proposed listing 

does not satisfy ESA section 4(b)(I)(A). 

Section 4(b)(1)(A) of the Endangered Species Act, 16 U.S.C. § 1533(b)(1)(A), 

requires listing determinations to be made on the basis of the ‘‘best scientific and 

commercial data available.’’ As discussed below, the Service’s Status Review for its 

proposal to list the northern long-eared bat as endangered is based on conflicting 

information, assumptions, unpublished data which has not been peer-reviewed, and 

suffers from numerous data gaps. The proposed listing is not supported by the best 

scientific and commercial data available and therefore does not meet the legal 

standard required by § 4(b)(1)(A) of the ESA. 

Section 4(b)(1)(A) also prohibits ESA listing determinations until after all of the 

efforts made by states or other political subdivisions to protect such species are considered. Several states have created white-nose syndrome (WNS) action plans 1 and 

are in the ‘‘front lines’’ of bat management efforts. PIOGA and the PA Chamber believe the Service has not fully considered these efforts to protect and conserve the 

northern long-eared bat. The Service recognizes that its Status Review only 

‘‘provides a few examples of such existing regulatory mechanisms, but is not a comprehensive list.’’ See 78 Fed. Reg. at 61067–68. Worse, the Service actually misunderstands or misrepresents a bill pending in the Pennsylvania legislature, House 

Bill 1576 (the Endangered Species Coordination Act), which does specifically allow 

Pennsylvania administrative agencies to designate threatened and endangered species under Pennsylvania state law. Id. at 61068. 

The Service must consider all current state and local efforts to protect the northern long-eared bat in order to comply with § 4(b)(1)(A). PIOGA and the PA Chamber 

recommend that the Service postpone making a final decision on the species listing 

so that it can fully review conservation and research programs underway in various 

states. 

2. Peer review of significant amounts of unpublished data is missing; the 

listing is not supported by the best scientific and commercial data available. 

The Service is ‘‘seeking comments from knowledgeable individuals with scientific 

expertise to review our analysis of the best available science.’’ 78 Fed. Reg. at 61046. 

The Status Review lists over 20 unpublished studies and sources of data, including 

data reportedly supplied by the Pennsylvania Game Commission and other state 

agencies. Some studies anecdotally note northern long-eared bat population declines 

in Pennsylvania but only from winter cave surveys rather than multiple seasonal 

surveys. Some or all of these studies and data clearly warrant peer review because 

the Service obviously is relying on them for its proposed listing. It is not clear 

whether the scientific community has had a meaningful opportunity to review these 

sources, whether the sources have been peer-reviewed, or if so, which sources have 

been reviewed. PIOGA and the PA Chamber do not believe the Pennsylvania Game 

Commission data, for example, has been made available to the public and regulated 

community. We have not seen it. 

Observations of multiple independent bat biologists that are summarized in the 

Marcellus Shale Coalition’s and the Ohio Oil and Gas Association’s comments on the 

Status Review indicate that the northern long-eared bat is the most common bat 

captured in surveys. Peer review would determine whether all appropriate factors 

to evaluate a listing, such as spring emergence counts, summer mist netting, fall 

swarming surveys, and winter hibernacula surveys, have been considered. The 

Service cannot meet its legal obligation to use the best scientific and commercial 

data available without subjecting its data to peer review. 

3. The development of recovery plans that impose significant restrictions 

on industry and the designation of critical habitat are not warranted. 

The Service makes two key findings regarding WNS and critical habitat. First, 

the northern long-eared bat ‘‘is in danger of extinction, predominantly due to the 

threat of white nose syndrome’’ (emphasis added). 78 Fed. Reg. 61046. Second, there 

is no designation of critical habitat,2 although comments are invited on such a desVerDate Mar 15 2010 11:33 Jun 25, 2015 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 J:\00 FULL COMMITTEE\00SE08 2ND SESS. PRINTING\89831.TXT DARLEN
22 

ignation. The Status Review notes that ‘‘since information regarding the biological 

needs of the [long-eared bat] is not sufficiently well known to permit identification 

of areas as critical habitat, we conclude that the designation of critical habitat is 

not determinable for the northern long-eared bat at this time.’’ 78 Fed. Reg. at 

61079. 

Those two findings compel the following conclusion: where disease rather than 

habitat loss is causing the species decline, additional restrictions on field activities 

such as tree clearing, well pad development, and similar activities will not significantly help preserve the northern long-eared bat or combat the spread of WNS. 

Nothing in the Status Review indicates that the proposed listing, the development 

of a recovery plan, and restricting potential habitat modification, including oil and 

gas development, will appreciably stop or reverse the northern long-eared bat’s decline. As the Service acknowledges, ‘‘[e]ven if all habitat-related stressors were 

eliminated or minimized, the significant effects of WNS on the northern long-eared 

bat would still be present.’’ 78 Fed. Reg. at 61061. The key factor at issue is disease, 

not oil and gas operations or other activities. A listing that leads to a recovery plan 

which concentrates on the designation and protection of critical habitat as it relates 

to oil and gas development and other activities is contrary to the express purpose 

of Section 2(b) of the ESA, which is to conserve species. 16 U.S.C. § 1531(b). 

As the Service evaluates a listing decision based on the existing record, the 

Service must fully consider the fact that not enough information is known to designate critical habitat, and that WNS rather than the loss of critical habitat is the 

predominate reason for the bat’s decline. 

4. The Service must better understand the temporary nature of disturbance 

from the oil and gas development before finalizing the proposed listing. 

The conventional and unconventional (i.e., shale gas development) oil and gas industry develops natural resources responsibly by, for example, using existing access 

roads where feasible, limiting earth disturbance, minimizing the size of well pads, 

and reclaiming sites to pre- existing conditions after wells are drilled and completed. 

Oil and gas development operations typically are not of the nature, scope or duration that would compromise the lifecycle, reproduction, and habitat of the northern 

long-eared bat. 

Several of the statements in the Status Review’s discussion of shale gas development are simply not accurate. 78 Fed. Reg. at 61061. First, the statements regarding the number of wells projected and the size of potential disturbance do not take 

into account the evolution and shift of technology of horizontal drilling and minimizing disturbance by drilling multiple wells on one well pad. Second, the surface 

disturbance created by the development of shale gas is temporary and many states 

including Pennsylvania require site restoration and reclamation as part of the permit and construction process. And third, there is no recognition of the very minor 

footprint (frequently half an acre or less) occupied by a conventional well after it 

is drilled and completed. PIOGA and the PA Chamber recommend that the Service 

more carefully consider these facts as it evaluates the proposed listing. 

5. The relationship between White-Nose Syndrome and northern 

long-eared bat population must be better researched and understood. 

The effect of WNS varies widely by bat species. The Service recognizes that the 

use of predicted trends in other species may or may not be indicative of population 

trends in other bat species including the northern long-eared bat. 78 Fed. Reg. 

61061. The Service also acknowledges that the northern long-eared bat is easily 

overlooked during hibernacula surveys and the species is reported to be present in 

any one site smaller numbers than other species of bats. But the Service provides 

nothing to support the statement that ‘‘other factors are acting in combination with 

WNS to reduce the overall viability of the species.’’ 78 Fed. Reg. 61076. As such, 

the determination to list the northern long-eared bat could only be based on strong 

data and evidence about the impact of WNS on the bats, which PIOGA and the PA 

Chamber believe is lacking. 

Additional studies should be completed to understand the connection and impact 

of WNS on the northern long-eared bat. 

6. PIOGA and the PA Chamber support deferring 

the listing on the eastern small-footed bat. 

PIOGA and the PA Chamber agree with the Service’s determination that an endangered listing of the eastern small-footed bat is not warranted at this time in 

23 

view of the information, survey data and what is currently known about this bat 

species. 

Conclusion 

We believe that there is not a legally or technically adequate basis to list the 

northern long-eared bat as endangered or threatened at this time. The listing proposal should be withdrawn or delayed until all current efforts to protect the species 

have been fully considered, and all of the assumptions, modeling, and uncertainties 

have been subject to peer review. PIOGA and the PA Chamber join the Marcellus 

Shale Coalition’s request that the Service obtain a six-month extension to the deadline for making a final decision on the species listing. This would benefit all stakeholders and the Service because it would allow (i) stakeholders and the scientific 

community at large time to peer review data cited in the Status Review, (ii) the 

Service time to review the comments received with respect to the proposed listing, 

and (iii) the Service time to consider and compile additional data and information 

which may have been absent from the current analysis. 

If the Service decides to list the northern long-eared bat, PIOGA and the PA 

Chamber strongly encourage the Service to provide maximum flexibility in any rule 

or protective measures that are developed. As noted above, designation of critical 

habitat is not appropriate to conserve the species because no specific area in this 

bat’s range is likely to be essential to its conservation. The costs imposed on development activities throughout multiple industries and on the oil and gas industry 

specifically by any listing could be significant without a clear benefit to the species. 

However, if the Service moves forward to designate critical habitat and a recovery 

plan, PIOGA and the PA Chamber request to be included as stakeholders in that 

process. 

On behalf of our members, we appreciate your consideration of our comments. 

Please contact us if you have any questions or if you want to discuss these 

comments. 

Sincerely, 

Lou D’Amico, 

President & Executive Director 

PIOGA 

Sam Denisco, 

Vice President, Government Affairs 

PA Chamber of Business and Industry 

cc: 

The Honorable Dan Ashe, Director, U.S. Fish & Wildlife Service 

Jill Utrup—U.S. Fish & Wildlife Service, Twin Cities Field Office 

William Capouillez, Director, Habitat Management, Pennsylvania Game 

Commission 

24 

1 ‘‘Congress shall make no law . . . abridging . . . the right of the people . . . to petition 

Government for a redress of grievances.’’ U.S. Const., amend. I. The right to petition for redress 

of grievances is among the most precious of the liberties safeguarded by the Bill of Rights. 

United Mine Workers of America, Dist. 12 v. Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967). 

It shares the ‘‘preferred place’’ accorded in our system of government to the First Amendment 

freedoms, and has ‘‘a sanctity and a sanction not permitting dubious intrusions.’’ Thomas v. 

Collins, 323 U.S. 516, 530 (1945). ‘‘Any attempt to restrict those First Amendment liberties must 

be justified by clear public interest, threatened not doubtful or remotely, but by clear and 

present danger.’’ Id. 

ATTACHMENT 2 

February 5, 2014 

BY CERTIFIED MAIL 

The Honorable Sally Jewell, Secretary of the Interior 

U.S. Department of the Interior 

1849 C Street, N.W. 

Washington, D.C. 20240 

The Honorable Dan Ashe, Director 

U.S. Fish & Wildlife Service 

1849 C Street, N.W., Room 3331 

Washington, D.C. 20240 

Re: Emergency Petition for Programmatic ‘‘No Jeopardy’’ Finding for the 

Northern Long-Eared Bat 

Dear Secretary Jewell and Director Ashe: 

Pursuant to the Right to Petition Government Clause of the First Amendment to 

the United States Constitution,1 the Ohio Oil and Gas Association, the Marcellus 

Shale Coalition, the Gas Processors Association, the Independent Oil & Gas Association of New York, the Oklahoma Independent Petroleum Association, the 

Pennsylvania Chamber of Business and Industry, the Pennsylvania Independent Oil 

& Gas Association, the U.S. Chamber of Commerce, and the West Virginia Oil and 

Natural Gas Association (collectively ‘‘Petitioners’’) hereby submit this petition, on 

an emergency basis, to the U.S. Department of the Interior and the U.S. Fish & 

Wildlife Service (‘‘FWS’’ or ‘‘the Service’’). Specifically, Petitioners ask the Service 

to issue a finding pursuant to Section 7(a)(4) of the Endangered Species Act (‘‘ESA 

’’), 16 U.S.C. § 1536(a)(4), that oil and gas exploration and development activities undertaken before FWS issues a final listing decision for the Northern long-eared bat 

(‘‘NLEB’’), expected later this year, are not likely to jeopardize the continued existence of the species. 

As explained more fully below, after proposing to list the NLEB as endangered 

in October, the Service began instructing its Field Offices and federal action agencies to perform costly and time-consuming ESA Section 7(a)(4) conferencing reviews 

for all activities proposed to take place within the species’ range to determine 

whether each activity likely will jeopardize the continued existence of the NLEB, 

and to initiate a conference even if the proposed activity likely will not jeopardize 

the species. These instructions and the reviews they generate are unwarranted and 


89831.002.eps
25 

unsupported by law. Because oil and gas exploration and development activities are 

localized and do not have population-level effects on the NLEB, there is no scenario 

in which those activities likely will jeopardize the continued existence of the species 

during the pendency of FWS’s listing decision. As a result, there is no scenario in 

which such a proposed activity should trigger the ESA’s Section 7(a)(4) conferencing 

requirement. 

To ensure that the FWS Field Offices and the various federal action agencies comply with the narrow requirements of the ESA for proposed species and, in the process, avoid wasting millions of federal and private dollars and needlessly delaying 

billions of dollars in energy development projects nationwide, Petitioners respectfully request that the Service issue a programmatic ‘‘no jeopardy’’ finding for proposed oil and gas exploration and development activities scheduled to occur within 

the NLEB’s range before FWS issues a final listing decision for the species. 

I. Interests of Petitioners 

The importance of the oil and natural gas industry to the national economy cannot be overstated. Oil and gas supply more than 60% of the ,nation’s energy, and 

they are crucial components in a wide variety of products—from synthetic fabrics, 

to medicines, to fertilizers. As a result, the oil and natural gas industry has a deep 

impact throughout all sectors of the economy and across all 50 states. In 2011 alone, 

the industry’s total impact on U.S. gross domestic product was $1.2 trillion, accounting for 8.0% of the national total. The industry’s total employment impact to the 

national economy in 2011 amounted to 9.8 million full-time and part-time jobs and 

accounted for 5.6% of total U.S. employment. That employment generated $598 billion in labor income, or 6.3% of national labor income in 2011. See generally, American Petroleum Institute, Economic Impacts of the Oil and Natural Gas Industry on 

the U.S. Economy in 2011 (July 2013), available at http://www.api.org/policy-andissues/policy-items/jobs/economic-impacts-of-oil-natural-gas-industry-on-us-economy2011. Petitioners represent thousands of members in this industry. many of whom 

regularly operate within the range of the NLEB and are significantly affected by 

the activities of FWS described in this petition. 

The Ohio Oil and Gas Association (‘‘OOGA’’) is one of the largest and most active 

state-based oil and natural gas associations in the country and has served as the 

representative of Ohio’s oil and gas industry since 1947. Its 3,300+ members include 

large and small business entities involved in all aspects of the exploration, development, production, and marketing of crude oil and natural gas resources in Ohio. 

Because of the small size of many OOGA members, they often rely on OOGA as 

their primary source of information on industry trends, activities, tax changes, legislation, and regulatory matters. OOGA also serves to protect its members’ interests 

by participating in federal and state regulatory actions involving the crude oil and 

natural gas industry. 

The Marcellus Shale Coalition (‘‘MSC’’) is a trade association with national membership. The MSC was formed in 2008 and currently is comprised of approximately 

300 producing and supply chain members who are fully committed to working with 

local, county, state and federal government officials and regulators to facilitate the 

development of the natural gas resources in the Marcellus, Utica and related geological formations. The MSC’s members represent many of the largest and most active companies in natural gas production, gathering and transmission in the 

country, as well as the suppliers and contractors who service the industry. 

The Gas Processors Association (‘‘GPA’’) is a trade organization that has served 

member companies since 1921. GPA is made up of 130 corporate members, all of 

whom are engaged in the processing of natural gas into merchantable pipeline gas, 

or in the manufacture, transportation, or further processing of liquid products from 

natural gas. GPA’s corporate members represent approximately 92% of all natural 

gas liquids produced in the United States and operate approximately 190,000 miles 

of domestic gas gathering lines. 

The Independent Oil & Gas Association of New York (‘‘IOGANY’’) is an industry 

trade association founded in 1980 and is currently comprised of more than 330 

members, including but not limited to, oil and gas producers and operators, pipeline 

and marketing companies, engineers and geologists, and oil and natural gas utilities. Many IOGANY members operate in areas within the range of the NLEB. These 

operations are crucial to its members’ business and their continued ability to develop and produce our nation’s energy. They also provide substantial income within 

these localities, along with secure, well-paying jobs at a time when significant unemployment continues to trouble our nation. 

The Oklahoma Independent Petroleum Association (‘‘OIPA’’) represents approximately 2,650 small to large independent operators that are primarily involved with 

26 

the exploration and production of crude oil and natural gas in Oklahoma. In addition, OIPA represents a number of companies which provide services that support 

exploration and production activities. ‘‘Independent’’ producers are non-integrated 

companies which receive the majority of their revenues from production at the wellhead. They are exclusively in the exploration and production segment of the industry with no marketing or refining operations as compared to the large, integrated, 

major oil and gas companies. Independent oil and gas companies range in size from 

large companies with thousands of employees to hundreds of smaller ‘‘mom and pop’’ 

type companies. In Oklahoma, independent producers make up the majority of the 

energy industry producing 96% of the state’s crude oil and 88% of the state’s natural 

gas. 

The Pennsylvania Chamber of Business and Industry (‘‘PA Chamber’’) is the largest broad-based business advocacy association in Pennsylvania. Its thousands of 

members throughout the Commonwealth of Pennsylvania employ greater than 50 

percent of Pennsylvania’s private workforce. Its membership ranges from Fortune 

100 companies to sole proprietorships. Headquartered in Harrisburg, the PA 

Chamber serves as the frontline advocate for business on Capitol Hill by influencing 

the legislative, regulatory and judicial branches of state government. Its mission is 

to improve Pennsylvania’s business climate for PA Chamber members. 

The Pennsylvania Independent Oil & Gas Association (‘‘PIOGA’’) is a trade association comprising nearly 1,000 members: Pennsylvania independent oil and natural 

gas producers, marketers, service companies and related businesses, landowners 

and royalty owners. PIOGA’s members undertake oil and gas development and production operations within the potential range of the NLEB in Pennsylvania. These 

operations, including clearing trees and building roads, are constrained and directed 

by environmental laws regarding permits and species protection, as well as by property and contract law. 

The U.S. Chamber of Commerce (‘‘Chamber’’) is the world’s largest business federation, representing the interests of more than three million businesses of all sizes, 

sectors, and regions, as well as state and local chambers and industry associations, 

and dedicated to promoting, protecting, and defending America’s free enterprise 

system. 

The West Virginia Oil and Natural Gas Association (‘‘WVONGA’’), chartered in 

1915, is the only association that serves the entire oil and gas industry within West 

Virginia. WVONGA members operate in virtually every county in West Virginia. Its 

members employ thousands of people across the state, having payrolls totaling hundreds of millions of dollars annually. WVONGA members have a cumulative investment of nearly $10 billion in West Virginia, own about 20,000 oil and gas wells, 

have more than 15,000 miles of pipeline crisscrossing the state and provide oil and 

natural gas to roughly 300,000 West Virginia homes and businesses. Because of the 

small size of many WVONGA members, they often rely on WVONGA as their primary source of information on industry trends, activities, tax changes, legislation, 

and regulatory matters. WVONGA also serves to protect its members’ interests by 

participating in federal and state regulatory actions involving the crude oil and natural gas industry. 

II. Background 

On October 2, 2013, the Service issued a 12-Month Finding on Petition To List 

the Northern Long-Eared Bat and the Eastern Small-Footed Bat as Endangered or 

Threatened Species and Proposed Rule. 78 Fed. Reg. 61046 (Oct. 2, 2013) (Attachment 1 hereto). The Northern long-eared bat has a broad range, covering 39 states 

(including the District of Columbia) and much of Canada, and the species continues 

to be commonly captured throughout the bulk of that range. Id. at 61051–64. Nevertheless, FWS has proposed to list the species as endangered because of reported and 

anticipated impacts from white nose syndrome (‘‘WNS’’)—a fungal disease discovered in New York in 2006 with currently no known cure. 

In support of its proposed listing decision for the NLEB, the Service explains that 

‘‘WNS currently is the predominant threat to the species, and if WNS had not 

emerged or was not affecting the northern long-eared bat populations to the level 

that it has, we presume the species would not be experiencing the dramatic declines 

that it has since WNS emerged.’’ Id. at 61058. Although WNS has been confirmed 

only in a portion of the NLEB’s range, FWS believes that in time the disease will 

spread to other areas of the species’ range. Accordingly, the Service’s proposed listing decision is premised solely upon the reported and anticipated effects of WNS on 

the NLEB. See id. at 61072. Indeed, the Service states that while ‘‘[o]ther sources 

of mortality to the species include wind-energy development, habitat modification, 

destruction and disturbance (e.g., vandalism to hibernacula, roost tree removal), efVerDate Mar 15 2010 11:33 Jun 25, 2015 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 J:\00 FULL COMMITTEE\00SE08 2ND SESS. PRINTING\89831.TXT DARLEN
27 

2 It should be noted, however, that numerous commenters on the proposed listing decision 

have urged FWS to obtain a six-month extension of the deadline for making a final decision 

pursuant to the terms of the multi-district litigation settlement agreements. In Re: Endangered 

Species Act Section 4 Deadline Litigation, MDL No. 2165, Case No. 10–377 (D.D.C). 3The Section 7(a)(4) conferencing requirement also is triggered when an activity likely will 

destroy or adversely modify proposed critical habitat. 33 U.S.C. § 1536(a)(4). Because FWS has 

not proposed to designate critical habitat for the NLEB, that requirement is not applicable here. 

In addition, although not contemplated in the ESA or its implementing regulations, the Service 

has unofficially interpreted Section 7(a)(4) to allow action agencies voluntarily to request a conference with FWS without first determining that a proposed action likely will jeopardize a proposed species or destroy/adversely modify critical habitat. Endangered Species Consultation 

Handbook at 6–1. We question the validity of that interpretation, but it currently is beyond the 

scope of this petition. 

fects of climate change, and contaminants . . ., no significant decline due to these 

factors has been observed . . ..’’ Id. at 61075. 

The Service did not designate any critical habitat for the NLEB in its proposed 

listing decision because it determined that doing so was not ‘‘prudent and determinable.’’ Id. at 61077–79. FWS expects to issue a final listing decision for the species by October 2, 2014.2 See generally id. Until that time, the NLEB is considered 

a ‘‘proposed species’’ under the ESA. 50 C.F.R. § 402.02. 

III. ESA Section 7(a)(4) Conferencing Requirement and FWS 

Conferences on the NLEB 

Unlike species that the Service has listed as threatened or endangered, proposed 

species, such as the NLEB, are not subject to the ESA’s traditional species protections. See 16 U.S.C. § § 1536(a)(2), 1538(a)(1). The ESA’s protections for proposed 

species are limited in pertinent part to the Section 7(a)(4) conferencing requirement. 

Id. § 1536(a)(4). 

Section 7(a)(4) of the ESA directs that ‘‘[e]ach Federal agency shall confer with 

the Secretary on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under [the ESA] or result in the destruction 

or adverse modification of critical habitat proposed to be designated for such species.’’ Id. Thus, in contrast to Section 7 consultations, which federal agencies must 

initiate with FWS anytime a planned action ‘‘may affect’’ a listed species, federal 

agencies must initiate Section 7(a)(4) conferences only if they determine that the action ‘‘likely’’ will ‘‘jeopardize the continued existence of’’ a proposed species.3 See id.; 

FWS, Endangered Species Consultation Handbook at 6–1 (1998). That is a rigorous 

standard to meet. 

The Service defines ‘‘jeopardize the continued existence of’’ to mean ‘‘to engage in 

an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild 

by reducing the reproduction, numbers, or distribution of that species.’’ 50 C.F.R. 

§ 402.02. Making the standard even more demanding, jeopardy determinations must 

be based on the effects of the proposed action to the entire population of a species 

range-wide. Endangered Species Consultation Handbook at 4–36. As FWS has explained, ‘‘[a]dverse effects on individuals of a species . . . generally do not result 

in jeopardy determinations unless that loss, when added to the environmental baseline, is likely to result in significant adverse effects throughout the species’ range.’’ 

Id. 

On January 6, 2014, the Service issued interim guidance to help FWS Regions 2, 

3, 4, 5, and 6 conduct Section 7(a)(4) conferences on the NLEB in advance of a final 

listing decision. FWS, Northern Long-Eared Bat Interim Conference and Planning 

Guidance (Jan. 6, 2014) (‘‘NLEB guidance’’) (Attachment 2 hereto). Notwithstanding 

the narrow requirement of Section 7(a)(4) for action agencies to confer with FWS 

only when they determine that a proposed activity likely will jeopardize a species, 

the Service’s guidance espouses a far broader interpretation. The guidance asserts 

that ‘‘it is in the best interest of the species, and our federal partners to consider 

the value of voluntary conservation measures [in the conferencing process] for 

projects that are not likely to cause jeopardy, but are likely to adversely affect the 

NLEB.’’ Id. at 6. In fact, the guidance acknowledges that its outlined procedures ‘‘include some section 7 language and steps that are not required,’’ but states that 

‘‘FWS offices and action agencies are encouraged to employ these procedures’’ nonetheless. Id. at 9. In other words, FWS is advising its Field Offices and the federal 

28 

4 Although not the subject of this petition, Petitioners question whether the guidance is valid 

or authorized by the ESA. By filing this petition, Petitioners do not waive any right to challenge 

the guidance or FWS’s or any other agency’s reliance on it. 5These letters appear to go even further than the NLEB guidance by instructing the project 

proponent to undertake Section 7 consultation—a process that the ESA reserves only for species 

that already have been listed under the ESA. See 16 U.S.C. § 1536(a)(2). 6See U.S. Fish & Wildlife Service Budget Justifications and Performance Information—Fiscal Year 2014 at ES–11 (explaining that $64.75 million has been budgeted in FY 2014 for FWS to 

carry out its responsibilities under Section 7 and the habitat conservation planning provisions 

of the ESA). 7 In 2012, oil and gas producers spent an estimated $153.7 billion to drill 46,736 wells in the 

United States. API Survey: U.S. Energy Revolution Gathers Momentum (Dec. 23, 2013), available at http://www.api.org/news-and-media/news/newsitems/2013/dec-2013/api-survey-us-energyrevolution-gathers-momentum. Billions more are spent each year on pipelines and related 

infrastructure. 8This petition requests the Section 7(a)(4) ‘‘no jeopardy’’ finding only until the Service issues 

a final listing decision for the NLEB because, if FWS decides to list the species, Section 7(a)(4) 

no longer would apply. Accordingly, any activities that have not been completed and will continue to require federal action or subsequently will require federal action would be subject to 

the ESA’s Section 7(a)(2) consultation requirement for listed species (if they likely will affect 

a listed species) once a final affirmative listing decision is made. 

action agencies to take actions that are beyond the authority provided in the ESA 

and the conferencing requirement of Section 7(a)(4).4

Unfortunately, the Field Offices and action agencies already have begun implementing these overreaching procedures—in some cases, even before the guidance 

was finalized. For example, the FWS Ecological Services Office in Columbus, Ohio 

employed these procedures as early as November 2013 to instruct project proponents 

and federal action agencies not to clear trees in areas where NLEBs have been captured in surveys ‘‘until after any necessary consultation between the Federal agency 

and the Service, under section 7 of the Endangered Species Act of 1973, as amended, is complete.’’ See Letters from Mary Knapp—FWS Field Supervisor for 

Columbus Ecological Services Office (Attachment 3 hereto).5 It further ‘‘request[s] 

that unavoidable tree clearing be conducted from October 1 to March 31 whenever 

possible.’’ Id. These instructions by FWS are not authorized by the ESA or justified 

under the statute’s Section 7(a)(4) conferencing provision. 

The ultra vires conferencing process that the NLEB guidance recommends already 

has had and will continue to have a significant impact on the government and on 

industry. Conferencing reviews take time. They require coordination between at 

least two federal agencies, evaluation of environmental studies and data, and legal 

and scientific analyses. Conducting those activities requires FWS and the action 

agencies to expend significant money and resources from their already-strained 

budgets.6 Meanwhile, and contrary to the express terms of Section 7(a)(4), the subject activity under review cannot move forward because action agencies typically 

will not issue the permits and other federal authorizations required to begin work 

on projects until the conferencing review has been completed. See 16 U.S.C. 

§ 1536(a)(4) (clarifying that the ESA does not prohibit permit applicants from moving forward with their activities before the conferencing process is completed). As 

a result, project proponents already have and will continue to suffer substantial and 

costly delays and incur significant opportunity costs on account of these unwarranted reviews.7

IV. Requested Relief and Justification 

To ensure that the Service and federal action agencies act within the confines of 

the Section 7(a)(4) conferencing requirement and avoid wasting significant federal 

and private resources and needlessly delaying important energy projects in 39 

states, Petitioners respectfully request that FWS promptly issue a programmatic ‘‘no 

jeopardy’’ finding for all oil and gas exploration and development activities (‘‘O&G 

activities’’) to be undertaken within the NLEB’s range before a final listing decision 

is made for the species.8 Such a finding is appropriate because the best scientific 

and commercial data available—the record underlying FWS’s proposed listing decision—demonstrates beyond dispute that (1) oil and gas exploration and development 

activities do not appreciably affect the NLEB individually or cumulatively (leading 

FWS to conclude that these activities do not affect the species’ ‘‘continued existence’’), even when combined with the effects of all other land development activities 

throughout the species’ range; (2) the single primary threat to the NLEB is whitenose syndrome—indeed, FWS would not be proposing to list the NLEB but for the 

reported and anticipated effects of WNS—yet the disease has spread to only a portion of the NLEB’s range and significant impacts to the species from the disease 

29 

9While FWS also states that ‘‘when combined with the significant population reductions due 

to white-nose syndrome (Factor C), the resulting cumulative effect may further adversely impact 

the species,’’ that tentative conclusion does not suggest that these activities, alone or in combination with each other and WNS, could affect the NLEB to such an extent as to likely jeopardize 

its continued existence. See id. at 61072 (emphasis added). Nor could it given that WNS has 

not been confirmed in nearly half of the NLEB’s range. See infra at 7. 10 Although not considered by FWS in its proposed listing decisions, the conclusion that 

human activities such as O&G development will not likely jeopardize the species is even stronger here because (1) the NLEB will be in hibernation (and therefore would not be expected to 

be directly affected by such activities) for a large portion of the time remaining in the listing 

decision-making process, and (2) the species will not suffer significant effects from such activities when not hibernating since NLEB summer habitat is and will continue to be plentiful. See 

78 Fed. Reg. at 61055 (explaining that NLEBs can hibernate from October until April); 

Comments of MarkWest Energy Partners, L.P. at 12 (Jan. 2, 2014) (Attachment 4 hereto) (citing 

the comments of several state and peer review commenters to demonstrate that summer habitat 

is not a limiting factor for the NLEB). 

have been reported only in a fraction of that area; and (3) irrespective of the impacts 

of WNS and any impacts from land development activities, the NLEB continues to 

be prevalent in the majority of its broad range. Each of these factors is discussed 

in turn. 

First and most fundamentally, the Service already has determined that O&G activities do not have population-level effects on the NLEB, even when combined with 

all other non-WNS impacts. In the proposed listing decision, FWS considers potential direct and indirect effects to the NLEB from a variety of activities, including 

wind energy development, pesticide application, forest management and prescribed 

burning, activities that emit greenhouse gases, natural gas exploration and development, mining, and other land development activities that take place within the species’ summer habitat. 78 Fed. Reg. at 61059–61 , 61068–72. Based on that analysis, 

the Service concludes that ‘‘[a]lthough such activities occur, there is no evidence 

that these activities alone have significant effects on [the NLEB], because their effects are often localized and not widespread throughout the species’ range[].’’ Id. at 

61072; see also id. at 61061 (‘‘Although such activities occur, these activities alone 

do not have significant population-level effects on [the] species.’’). 

Under the express terms of the ESA, that conclusion confirms that human activities do not affect the NLEB’s ‘‘continued existence’’ and, therefore, that they cannot 

be ‘‘likely’’ to jeopardize the species’ continued existence. See 16 U.S.C. 

§ 1533(a)(1)(E) (setting forth the Factor E listing criterion—the analysis FWS performed to reach the above-quoted conclusion—which requires FWS to determine 

whether the species should be listed on account of ‘‘natural or manmade factors 

affecting its continued existence’’) (emphasis added). If that were not enough, the 

Service then concludes that those various types of human activities—even when 

viewed ‘‘in combination’’ with each other and even when considering ‘‘all present and 

threatened destruction, modification. or curtailment of [the NLEB’s] habitat or 

range’’ from other activities (including natural gas development) and the use of the 

species for ‘‘commercial, recreational, scientific, or educational purposes’’—‘‘do not 

have significant effects on the species.’’ Id. at 61057, 61061, 61072.9

In the face of these conclusions, which the ESA required FWS to make based on 

the best scientific and commercial data available, the Service cannot now reasonably 

find that any individual O&G activity that is undertaken before a final listing decision is made likely will jeopardize the NLEB.10 That is particularly true in light 

of the Service’s understanding that jeopardy findings should be based on rangewide, population-level species impacts from proposed actions, not localized and individual effects to species. See Endangered Species Consultation Handbook at 4–36; 

supra at 6. 

Second, throughout its proposed listing decision, the Service makes clear that impacts—both reported and predicted—to the NLEB from white-nose syndrome are the 

‘‘but for’’ cause of its proposal to list the species as endangered. FWS explains that 

‘‘WNS alone has led to dramatic and rapid population level effects on the northern 

long-eared bat’’ and ‘‘the species likely would not be imperiled were it not for this 

disease.’’ 78 Fed. Reg. at 61072 (emphasis added). At the same time, the Service recognizes that the distribution of WNS covers only portions of the NLEB’s range in 

the U.S. and abroad. In fact, as of this past August, WNS has never been documented in 17 states within the NLEB’s U.S. range. Id. at 61061. And based on FWS 

reports, to date the disease has not significantly affected the NLEB in many of those 

areas where its presence has been confirmed. See id. at 61064–65 (reporting that 

WNS is known to have significantly affected the NLEB only in the northeastern portion of its U.S. range). Moreover, while the Service hypothesizes that WNS will 

quickly spread to the remainder of the species’ range and will significantly affect 

30 

the NLEB range-wide in the future, the administrative record for the proposed listing decision does not support that conclusion. See Attachment 4, Comments of 

MarkWest Energy Partners, L.P. at 7–8. 

In light of the foregoing, the Service and federal action agencies cannot reasonably 

conclude that any O&G activity likely will jeopardize the NLEB as the ESA requires 

to compel a Section 7(a)(4) conference with FWS. That WNS—the sole cause of the 

reported population-level declines of the NLEB—has not reached nearly 50% of the 

species’ domestic range and currently does not significantly affect the bat in many 

areas that it has reached ensures that even the largest O&G activities will not jeopardize the NLEB. 

Finally, notwithstanding the proposed listing decision, the NLEB continues to be 

prevalent throughout much of its broad 39-state range. As FWS recognizes, the 

NLEB has been particularly ‘‘abundant’’ in the eastern portion of its range, and it 

is ‘‘commonly encountered in summer mist-net surveys throughout the majority of 

the Midwest and is considered fairly common throughout much of the region’’ as 

well. 78 Fed. Reg. at 61052. According to the Service, the NLEB remains the secondmost captured bat species in Vermont, is ‘‘fairly common’’ in Virginia and Maine, 

is routinely caught in at least 51 counties in Indiana, is considered ‘‘common’’ in 

West Virginia, is ‘‘commonly captured’’ in Missouri (so much so that the state removed the bat from its species of concern list in 2007), is ‘‘regularly caught’’ in 

Illinois, is ‘‘regularly collected’’ in Ohio, is ‘‘regularly captured’’ and is ‘‘one of the 

most common bat species captured during mist net surveys’’ within its range in 

Oklahoma, and is ‘‘commonly captured’’ in Kentucky. Id. at 61052–53, 61064. And 

as numerous state, peer review, and private commenters explained in their recent 

comments on the proposed listing decision, even these reports underrepresent the 

species’ abundance and population trends. See, e.g., Comments of OOGA (Jan. 2, 

2014) and Comments of MarkWest Energy Partners, L.P. (Jan. 2, 2014) (demonstrating that the winter survey data that FWS relied on for the proposed listing 

decision significantly underrepresents the NLEB’s abundance and does not reflect 

the best available science) (Attachment 4 hereto). In view of the NLEB’s continuing 

abundance throughout much of its range (not to mention the localized nature of 

most O&G activities that FWS recognizes in the proposed listing decision, see supra 

at 8), no proposed O&G activity likely will jeopardize the NLEB and thus require 

a Section 7(a)(4) conference before a final listing decision is made. 

For each of the above reasons, the Service should issue the requested ‘‘no jeopardy’’ finding for proposed O&G activities scheduled to occur within the NLEB’s 

range before a final listing decision is made. The administrative record for the proposed listing decision, which the Service endorses as the best scientific and commercial data available, demonstrates that there is no scenario in which such activities 

‘‘are likely to jeopardize the continued existence of’’ the NLEB during that time. 

There simply is no reasonable basis for concluding that any such activity could ‘‘be 

expected, directly or indirectly, to reduce appreciably the likelihood of both the 

survival and recovery of [the] species in the wild by reducing the reproduction, numbers, or distribution of that species’’ as the Service’s regulations require for a jeopardy finding. See 50 C.F.R. § 402.02 (emphasis added). FWS already has concluded 

as much in its Factor E (and Factor A) analysis for the proposed listing decision. 

See supra at 8–9. It now should memorialize that finding for purposes of Section 

7(a)(4) in a programmatic ‘‘no jeopardy’’ determination. 

In light of the severe financial and logistical impacts that will continue to accrue 

until the Service acts on this petition, the limited timeframe until FWS makes a 

final listing decision on the NLEB, and the substantial legal and factual bases supporting the requested action, Petitioners respectfully request that FWS consider this 

petition on an emergency basis and perform an expedited review. To that end, we 

ask that the Service issue the proposed ‘‘no jeopardy’’ finding for O&G activities 

within 30 days from the date of this letter. Given the emergency nature of this 

request, if the proposed finding has not been issued by the expiration of that period, 

we must consider the petition to have been denied. In addition, in the interest of 

expediting this process, we request a meeting, with Director Ashe and any staff 

he deems appropriate before the expiration of that period to discuss these issues. 

***** 

Thank you for considering this emergency petition to issue a programmatic ‘‘no 

jeopardy’’ finding for proposed oil and gas exploration and development activities 

that will occur within the NLEB’s range before the Service makes a final listing decision for the species. For the reasons explained above, issuing such a finding will 

comply with Section 7(a)(4) of the ESA, is supported by the administrative record 

for FWS’s proposed listing decision, and will avoid wasting millions of federal and 

31 

private dollars to conduct superfluous reviews that will needlessly delay billions of 

dollars in planned projects over the next year. If you have any questions about this 

petition, please contact W. Parker Moore at (202) 789–6028, or counsel for OOGA, 

Kristin Watt at (614) 464–8398. In addition, please direct any correspondence regarding this petition to: 

W. Parker Moore 

Beveridge & Diamond, P.C. 

1350 I Street, NW, Suite 700 

Washington, DC 20005 

(202) 789–6028 

pmoore@bdlaw.com 

Respectfully submitted, 

Jeff Applekamp David Spigelmyer 

Vice President, Government Affairs President 

Gas Processors Association Marcellus Shale Coalition 

Thomas E. Stewart Bradley R. Gill 

Executive Vice President Executive Director 

Ohio Oil & Gas Association Independent Oil & Gas Association 

of New York 

Mike Terry William L. Kovacs 

President Senior Vice President, 

Oklahoma Independent Petroleum 

Association 

Environment, Technology & 

Government Affairs 

U.S. Chamber of Commerce 

Sam Denisco Lou D’Amico 

Vice President, Government Affairs President and Executive Director 

Pennsylvania Chamber of Business 

and Industry 

Pennsylvania Independent Oil & Gas 

Association 

Nicholas ‘‘Corky’’ DeMarco 

Executive Director 

West Virginia Oil & Natural Gas 

Association 

The CHAIRMAN. Thank you. And thank you very much, Mr. 

D’Amico, for your testimony. 

Now recognize Mr. Jim Brubaker from the Farm Bureau. You 

are recognized for 5 minutes. 

STATEMENT OF JIM BRUBAKER, BOARD MEMBER, 

PENNSYLVANIA FARM BUREAU, UNION COUNTY FARMER, 

BUFFALO VALLEY FARMS, LEWISBURG, PENNSYLVANIA 

Mr. BRUBAKER. Good morning, Chairman Hastings, and 

Representative Thompson and Representative Perry. I am Jim 

Brubaker, a grain and livestock farmer in Union County, 

Pennsylvania. I am a member of the Pennsylvania Farm Bureau, 

Board of Directors, and chair our Natural and Environmental 

Resources Committee. 

Today, I am testifying on behalf of the Pennsylvania Farm 

Bureau and the American Farm Bureau Federation. 

The Farm Bureau agrees that we must conserve and recover 

wildlife facing preventable extinction, but the ESA needs to be 

modernized to help endangered species without placing undue burdens on landowners. 

32 

The Northern Long-Eared Bat’s range and numbers make the potential impact of this listing on agriculture significant, and we are 

concerned that the basis for listing is not related to human activity, 

but because of the White Nose Syndrome. In summer, the Northern 

Long-Eared Bat roosts in live trees and snags, and in and on buildings, barns, sheds and so forth. These features are commonly found 

on farms across Pennsylvania in the bats’ range. 

The take prohibitions of the ESA, along with the designation of 

critical habitat could severely restrict activities, including natural 

gas and wind energy development, pesticide, insecticide and herbicide applications, highway construction and timbering harvesting. 

These restrictions could seriously hurt Ag. and, more specifically, 

farms. We have many questions about how listing this bat could affect our livelihoods. For example, how would an endangered listing 

impact livestock farmers seeking to develop shale gas onto their 

property? What about a dairy farmer who can’t get a milk truck 

onto his farm because construction and repair of a nearby bridge 

has been stalled? How would this impact a farmer’s ability to clear 

trees for firewood, or planning or implement forest management 

plans? 

Let’s look at my farm. Do I have the Northern Long-Eared Bat? 

I really don’t know. Like many farmers, I just know that I have 

bats but I don’t know what species, and that leads to more questions. What if the bats that I have in my barn are the NLE Bat, 

would I be prohibited from repairing or even changing my barn? 

What if I had to take land out of production or change the way I 

farm because I was too close to a roosting site? For instance, the 

notice links pesticides to the NLE Bat. It is scary to think that inputs critical to farm production could be restricted, even though the 

notice indicates that exposure to pesticides is not an immediate or 

significant risk itself. Pesticides are already governed by Federal 

and state laws. Farmers have used well-established application 

practices, spanning decades, in which the NLE Bat populations 

were not declining. 

I hope I have raised some important concerns today about how 

listing this bat will impact farmers. We care about the environment 

and conservation, and want to be good stewards of the land so we 

can pass it on to our next generation, but we also need to earn a 

viable income through our farms and be able to provide a safe and 

affordable food and fiber supply. Excessive regulations will not fix 

anything. Practical, workable solutions can, and we are willing— 

more than willing to do our part to help, but let’s make sure we 

are solving the problem and not making a new one. 

Listing this bat will only restrict farmers’ ability to use their 

land, and isn’t likely to stop the spread of White Nose Syndrome. 

We urge the Fish and Wildlife Service to not list the Northern 

Long-Eared Bat, and to ask Congress and the members of this committee to help prevent this listing from happening. 

Thank you again for the opportunity to testify, and I would be 

happy to respond to your questions. 

[The prepared statement of Mr. Brubaker follows:] 

33 

1Federal Register. Volume 78, Number 191. October 2, 2013. Docket No. FWS–R5–ES–2011– 

0024; 4500030113: Endangered and Threatened Wildlife and Plants; 12-Month Finding on a 

Petition To List the Eastern Small-Footed Bat and the Northern Long-Eared Bat as Endangered 

or Threatened Species; Listing the Northern Long-Eared Bat as an Endangered Species. 2Page 61072. 

3Page 61054. 

PREPARED STATEMENT OF JIM BRUBAKER ON BEHALF OF THE PENNSYLVANIA FARM

BUREAU

Good morning, Chairman Hastings, Ranking Member DeFazio, and members of 

the committee. I am Jim Brubaker, a grain and livestock farmer in Union County, 

Pennsylvania. I operate Buffalo Valley Farms with my two sons. We have 900 acres 

of corn and soybeans, 18,000 market hogs and one million kosher broilers. I currently serve on the Board of Directors for Pennsylvania Farm Bureau (PFB), and 

on the Board’s Executive Committee. I also serve as the chairman of the Natural 

and Environmental Resources Committee for PFB. In addition to my Farm Bureau 

activities, I am a member of the Buffalo Township Planning Commission and the 

Union County Commissioners’ Ag Advisory Committee. 

I offer these remarks on behalf of Pennsylvania Farm Bureau and our nearly 

60,000 members, and the more than six million member families of the American 

Farm Bureau Federation. My testimony will focus on Farm Bureau’s understanding 

of the proposal to list the northern long-eared bat as a protected species under the 

Endangered Species Act (ESA) and the potential impact on agriculture. 

Before I begin, however, I want to be clear that Farm Bureau agrees that Federal 

agencies and citizens must take responsible action when wildlife species are in danger of extinction to facilitate recovery of species populations. Farmers enjoy the benefits of having wildlife on their properties. I know I do. And farmers already take 

measures on their own to provide for wildlife and their habitat on farmland. But, 

at the same time, Farm Bureau believes that the ESA must be modernized, so that 

we can protect endangered species without imposing excessive burdens and restrictions on landowners’ use of land that provide marginal enhancement of species recovery. Unfortunately, the ESA is often ineffective at protecting endangered species, 

unnecessarily hurting people’s livelihoods in the process. And, in the case of the 

northern long-eared bat, listing this species has the potential to negatively affect 

farmers within the bat’s range. 

POTENTIAL IMPACTS OF LISTING THE NLE BAT

The decision to list the northern long-eared bat should not be taken lightly. With 

a range of 38 states and the District of Columbia, and the fact that this species of 

bat is 15–20 times more common than other non-listed bats in some areas, the potential scope of this listing and the impact on agriculture could be unprecedented. 

Even more concerning is the basis for the proposed listing is not related to human 

activity, but because of the U.S. Fish and Wildlife Service’s anticipated impact of 

the white-nose syndrome. Page 61058 of the October 2, 2013 Federal Register 

Notice 1 (‘‘Notice’’) states: 

‘‘. . . we have found no other threat that is as severe and immediate to the 

northern long-eared bat’s persistence as the disease, white-nose syndrome 

(WNS) . . . if WNS had not emerged or was not affecting the northern longeared bat populations to the level that it has, we presume the species would 

not be experiencing the dramatic declines it has since WNS emerged.’’ 

In addition, the Notice’s 2 summary of ‘‘other natural or manmade factors affecting 

[the northern long-eared bat’s] continued existence’’ indicates that though the factors identified (which included wind energy and natural gas development, contaminants, etc) do occur, there is: 

‘‘. . . no evidence that these activities alone have significant effects on either 

species [eastern and northern long-eared bat], because their effects are often 

localized and not widespread throughout the species’ ranges.’’ 

Furthermore, concerns have been voiced by commenters in response to the FWS’s 

request for comments about the validity of survey data conducted for the proposed 

listing was based on inaccurate and insufficient NLE bat data collected during winter surveys. In fact, in the Notice,3 the FWS discusses the winter habitat and specifically states that, ‘‘Northern long-eared bats are typically found roosting in small 

crevices or cracks in cave or mine walls or ceilings, often with only the nose and 

ears visible, thus are easily overlooked during surveys.’’ 

34 

4Page 61045–5. 

5The Federal Register (page 61070) notice acknowledges that ‘‘most organochlorine pesticides 

have been banned in the United States . . ..’’ 6Page 61071. 

The summer roosting locations are more likely to impact agriculture. Per the 

Notice, in the summer, the NLE bats, ‘‘typically roost . . . underneath bark or in 

cavities or crevices of both live trees and snags,’’ and ‘‘they have also been observed 

roosting in colonies in human made structures, such as buildings, barns, a park pavilion, sheds, cabins, under eaves of buildings, behind window shutters and in bat 

houses.’’ 4 Many of these roosting sites are likely to be found on farms across 

Pennsylvania and within the stated range of these bats. 

Once listed, the ESA makes it unlawful for any person—including private and 

public entities—to ‘‘take’’ a NLE bat. The ESA defines ‘‘take’’ to mean ‘‘harass, 

harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.’’ Further, the Act prohibits potential ‘‘harm’’ to include 

significant habitat modification or degradation which ‘‘actually kills or injures fish 

or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.’’ Violation of ESA take prohibitions carries civil penalties of up to $25,000 per violation, and criminal penalties 

of up to $50,000 and 1 year imprisonment per violation. 

These take prohibitions, along with the designation of critical habitat, have the 

potential to adversely impact a broad range of industries/activities including natural 

gas and wind energy development; application of pesticides, insecticides and herbicides; highway construction; and timber harvesting. And, if there’s one thing in common with this list, it’s that they all impact agriculture. How would such a listing 

impact a livestock farmer with vast shale gas resources under her land, when the 

sale of subsurface rights would provide a much-needed infusion of capital? And what 

of a dairy farmer who can’t easily get a milk truck onto the farm because construction of a nearby bridge has stalled? 

For the purposes of this testimony, I’ll discuss the issue of pesticides and forest 

land in a little more detail. 

Pesticides 

In asserting the possible cumulative effects to the NLE from other natural or 

manmade factors—specifically the application of pesticides—FWS’s proposed listing 

seeks to tie the chemical application of agricultural use of organiochlorine pesticides,5 organophosphate, carbamate and neonicotinoid insecticides, polychlorinated 

biphenols and polybrominated diphenyl ethers, and pyrethroid insecticides to species 

decline. However, at the end of the section of the Federal Register notice 6 discussing the effects of these and other contaminants, the FWS concludes: 

‘‘. . . the best available data indicate that contaminant exposure can pose 

an adverse effect to individual northern long-eared and eastern small-footed 

bats, although it is not an immediate and significant risk in itself at a population level.’’ 

Pesticide applications are covered by state laws and the Federal Insecticide, 

Fungicide and Rodenticide Act, and farmers have well-established practices concerning the application of pesticides. These practices spanned decades in which the 

NLE bat populations were not in decline. It was only after WNS was introduced to 

the NLE bat, that we began to see documented impacts to species health and population decline. In light of this, it is inappropriate for the FWS to link the application 

of pesticides by farmers to species decline without documented scientific analysis. 

As a farmer, linking between pesticides and the NLE bat is very concerning. It’s 

scary to think that my access to an important on-farm tool could be restricted. I— 

like many of my fellow farmers in PA—am a certified pesticide applicator. On our 

farm, we don’t use more pesticides, herbicides and insecticides than we have to and 

choose our treatments/preventive measures carefully. For example, on my farm we 

choose our herbicides based on weed pressure and field history. As I mention later, 

we also use cover crops which helps reduce weed pressure and the amount of herbicides we have to apply. 

Forest Land 

With 59 percent or nearly 17 million acres of Pennsylvania covered by forest, 

many agricultural operations include forested acres. Given the statement on page 

61075 of the Notice that, ‘‘Other sources of mortality to the species include . . . 

habitat modification, destruction and disturbance,’’ and the summer habitats of the 

35 

7http://www.fws.gov/midwest/endangered/images/mammals/nlba/nlebRangeAndWNSmapV4 

High.jpg. 

NLE bat discussed earlier, listing the NLE bat as an endangered species is likely 

to pose very serious challenges to farmers who have forested land on their farms. 

While I personally do not have much forested land on my property, many farmers 

do. What happens if the NLE bat is found to be roosting in an area of a farmer’s 

property? How will that impact the farmer’s ability to clear trees for firewood or 

planting, implement forest management plans and undertake managed harvesting 

and other recommended activities? Restricting these activities has the potential to 

adversely affect on-farm production activities, forest habitat management, and farm 

revenue. 

On the timbering side, I know you’ll be receiving testimony from the PA Forest 

Products Association, however, I do want to mention that Pennsylvania has one of 

the Nation’s largest concentrations of hardwood growing stock and is a leading producer of hardwood lumber. This industry sustains jobs and contributes to both the 

state and national economies. In addition, Pennsylvania is a national leader in the 

implementation and promotion of sustainable forestry practices. 

Based on potential impacts on pesticide use and forest management alone, agriculture has much to be concerned about if the NLE bat is listed as an endangered 

species. But let’s explore this issue even further. 

FARMER CONCERNS

Looking at a Fish and Wildlife Service map,7 there are confirmed or suspected 

cases of White Nose Syndrome in many of the counties surrounding Union County, 

where I live. This leads me to suspect that if the NLE bat was listed, I—or my 

neighbors—could face immediate restrictions on our farms and properties. 

You may be wondering if I have the NLE bat on my property. My answer is I 

don’t know. And I’d bet that a majority of my fellow farmers—in Pennsylvania or 

elsewhere—would answer the same way. I do have bats on my farm. I see them in 

buildings and in houses on my farm. In fact, there is one particular farmstead 

where I have a larger concentration of bats. But I don’t know the species. 

What if the bats in my own barn were found to be the northern long-eared bat? 

Would I face restrictions on how I could use my barn? Would I be able to repair 

or tear down an existing structure if it were found to house NLE bats? And, what 

if I had to take land out of production or change the way I farmed the land because 

it was too close to a roosting site? 

Consider this: if I had to take 4 acres of a corn field out of production, that would 

amount to approximately 800 bushels of corn. At $4.30 a bushel, that’s a $3,440 in 

income. Or, what if I wasn’t able to spray the correct pesticide and, as a result, I 

lost 40 percent loss of my 4-acre crop? That’s a loss of $1,376. On a farm, every bit 

of land counts, and losing even just a small parcel of land can have serious consequences on our bottom line and the success of our farm. 

FARMERS CARE

I do know this: farmers care about the environment and conservation. We want 

to preserve our land and the environment. We want to pass our land onto the next 

generation without ruining it for them and the generations that follow. We want 

practical solutions that work for agriculture—and the environment. 

On my farm, we do everything reasonably possible to be good stewards of the 

land. For example, we’ve been 100 percent no-till for the last 10–12 years; every 

year we sow cover crops on our soy stubble and use them to spread manure on in 

the fall; we have—and follow—a nutrient management plan; we test our soil before 

applying nitrogen to make sure we don’t over apply nutrients and we’ve installed 

sod waterways. 

On the conservation side, while most of our land is tillable with very little wooded 

land, we mow along streams to allow for habitat for rabbits and pheasants, and we 

try to keep a healthy, but manageable deer population. Due to the practices we use 

at Buffalo Valley Farms, our land has become much more productive over the 40 

years that we’ve been farming it. I’ve seen our crop yields improve, and we’re looking at our best crop year ever in 2014. 

FINDING A SOLUTION

During my years as a farmer, I’ve learned many things, especially this: excessive 

regulations do not benefit either the person regulated or that which is intended to 

be protected. Paperwork doesn’t solve problems. Practical, workable solutions can— 

36 

8PGC News Release #121–12 (October 4, 2012). 

and do—solve problems. As I mentioned earlier, we need practical solutions to 

protect wildlife and the environment, but we need to ensure that agriculture can 

continue to operate effectively and efficiently. If we fail, then we jeopardize the ability of agriculture to produce safe, affordable and abundant food and fiber for consumers in Pennsylvania, the United States and the world. 

As the FWS and Congress try to make the right decisions regarding the NLE bat, 

they might want to look at the Pennsylvania Game Commission (PGC) as a case 

study. As you might know, several years ago, the PGC considered placing the northern long-eared bat and two other species impacted by white-nose syndrome on the 

state’s endangered species list. Following a public comment period, the PGC decided 

not to list the three bat species. In a press release on the decision, Carl Roe, the 

PGC’s Executive Director stated: 

‘‘. . . it is clear that more discussion, research and coordination need to be 

done on WNS and the other outside factors that are impacting our bat populations, as well as how we can craft solutions that protect bats without 

threatening the industries that employ thousands of Pennsylvanians.’’ 8

Based upon my understanding of the issue, I’d say that we’re facing the same 

issue almost 2 years later. I’d say Pennsylvania made the right decision then, and 

I do hope that the Federal Government will make the right decision now. Because 

making the wrong decision will have ripple effects on the environment and agriculture right on to the consumer. 

As a farmer, I believe that using both common sense and science is a logical way 

to approach not just farming, but regulations. It seems to me that this proposal to 

list the northern long-eared bat is flawed from both a scientific and common sense 

perspective. If the U.S. Fish and Wildlife Service recognizes that human activities 

have not had an appreciable effect on the species to date, why would we focus on 

human-induced impacts to try to slow population decline? 

It just doesn’t make sense. 

Why hurt farmers, landowners, builders and service providers—to just name a 

few—when there is no guarantee that this will stop NLE bat declines? Instead, 

shouldn’t we focus on the root cause of the problem—white nose syndrome? 

Agriculture has long been willing to step up and do our part whether it’s helping 

out in our communities or responsibly managing the environment or wildlife. We’re 

more than willing to work with states and the Federal Government to do our part 

to ensure the longevity of the northern long-eared bat. But let’s make sure we’re 

solving the problem, not making new ones, because we’re not targeting the root 

cause. And, in this case, it’s white-nose syndrome. 

Farm Bureau recommends that the U.S. Fish and Wildlife Service not list the 

northern long-eared bat as an Endangered Species. And we urge Congress and the 

members of the U.S. House Committee on Natural Resources to help prevent this 

listing from happening. 

Additionally, I’d like to commend Chairman Hastings and members of the Natural 

Resources Committee for their continued efforts to identify and develop commonsense legislative reforms to the Endangered Species Act. The passage of H.R. 4315 

in the House of Representatives demonstrates your commitment to update and improve the processes and procedures that the ESA put in place 40 years ago. We look 

forward to working with Congress to make the ESA more workable for private landowners and thus more beneficial for the species that it is supposed to help. 

Thank you again for the opportunity to testify today, and I would be happy to 

respond to your questions. 

The CHAIRMAN. Thank you, Mr. Brubaker. Appreciate your 

testimony. 

Now recognize Mr. John Stilley, Owner and President of 

Amerikohl Mining. You are recognized for 5 minutes. 

STATEMENT OF JOHN STILLEY, OWNER AND PRESIDENT, 

AMERIKOHL MINING, INC., BUTLER, PENNSYLVANIA 

Mr. STILLEY. Good morning. Mr. Chairman, Members of the 

House Natural Resources Committee, my name is John Stilley and 

37 

I am President of Amerikohl Mining, along with Patriot 

Exploration Corporation and Amerikohl Aggregates. I also own all 

three companies, along with my two sons. 

Amerikohl Mining mines coal by the surface mining method in 

13 counties in Pennsylvania. Last year, we employed 125 hardworking men and women, produced 1 million tons of coal, all of 

which was marketed to local utilities’ industrial accounts. Since 

1978, we have completed mining of over 350 separate mine sites, 

and have successfully reclaimed the land to productive post-mining 

uses, including parks, residential communities, working farms and 

forest land. 

Approximately one-third of these sites consisted of lands which 

were mined previously in the 1940s and 1950s when no reclamation was required or done. As part and parcel to our mining efforts, 

we have reclaimed on these sites miles upon miles of existing high 

walls, 15,000 acres of abandoned mine lands, and rehabilitated 

many, many miles of polluted streams, all at no cost to the taxpayer. Amerikohl has also won over 70 state and Federal awards 

for outstanding reclamation. 

Amerikohl Aggregates operates two stone quarries in 

Pennsylvania, and annually produce and market over 1.25 million 

tons of stone and aggregate used primarily to build and rehabilitate Pennsylvania’s infrastructure, and Patriot Exploration has 

drilled and currently operates 250 oil and gas wells. 

I am here today on behalf of the Pennsylvania Coal Alliance, a 

trade association representing the interests of the state’s bituminous coal industry. Our Pennsylvania industry is responsible for 

60 million tons of production, and the creation of 40,000 jobs in the 

state. 

With that, please allow me to address the potential impact on the 

mining and quarrying industry if the Northern Long-Eared Bat is 

listed as an endangered species, along with my experience with the 

endangered listing of the Indiana Bat. 

The total amount of protected Indiana Bat habitats in 

Pennsylvania now totals over 3 million acres, or close to 10 percent 

of Pennsylvania. This encompasses almost 80 percent of Fayette 

County, and similar portions of Armstrong, Lawrence, Beaver and 

Butler Counties, specifically where we mine coal and quarry stone. 

Amerikohl has been dealing with the problem of the endangered 

Indiana Bat over the past 10 years, and expended millions of dollars in doing so, between mitigation fees, paid protection enhancement plans implemented, mist net surveys, seasonal limits on our 

lessees’ ability to harvest their timber estates, additional permit 

costs, legal defense of our rights with other Federal agencies, 

scheduling conflicts, and on and on. Additionally, compliance with 

the requirements imposed have negatively impacted our ability to 

manage our reserves to their optimal work, keep our men and capital employed to the fullest extent possible, and obstructed our ability to comply with contractual supply obligations. 

We, along with all in our industry, have stepped up and done all 

that has been asked of us and required of us. All the while, the 

Indiana Bat population over the same time frame has been decimated by White Nose Syndrome, rather than by lack of habitat or 

direct impacts from incidental take due to industry practices or any 

38 

other human influences. Similar to the Indiana Bat, the 

Pennsylvania Game Commission data documented decline in the 

Northern Long-Eared Bats primarily due to the White Nose 

Syndrome, and again, not industry practices or any human 

influences. 

Unlike the Indiana Bat, the Northern Long-Eared Bat’s summer 

and winter habitat ranges across the entire state, with a variety 

of forested habitats used for roosting and foraging. Should the 

Northern Long-Eared Bat be listed, the same limits and restrictions as mandated by the presence of the Indiana Bat would be imposed over most, if not all of Pennsylvania. 

Although the U.S. Fish and Wildlife Service announced on June 

30 a 6-month extension on any final decision regarding a listing, 

the Service’s State College regional office is treating permit reviews 

as though the listing has already been made. In response to an application for a limestone quarry operation Amerikohl submitted for 

review, I was instructed via letter from the field office that this site 

is located within the range of the Northern Long-Eared Bat, and 

although the species is not listed, the letter cautioned us to address 

this issue in the permit application or face project delays if a listing 

is finalized. 

So despite the U.S. Fish and Wildlife Service’s acknowledgement 

about the scientific uncertainty associated with the available data 

for making a determination, despite its announcement to defer a 

decision until April 2, 2015, in order to fully analyze the data, and 

without any justifiable certainty that a proposed activity will indeed threaten the continued existence of the Northern Long-Eared 

Bat, the Pennsylvania field office is instructing all permit applicants to implement protective measures for a non-listed species to 

avoid permit delays. 

This brings me to my final and principal comment. The regulatory process is in turmoil, devoid of science and common sense. 

Standards are constantly changing pursuant to regulatory and policy whims, not statutory or regulatory mandates, and all driven by 

a few who believe they know what is in the public’s best interest. 

This well-intentioned legislation is passed by Congress, never intended or anticipated at takeover expansion to the extent we are 

seeing today by unelected bureaucrats for reasons very, very difficult for me to understand, creating many distortions in the marketplace and making our great Nation uncompetitive in a world 

economy. 

The most important recommendation and request I can make to 

this committee today is to restore reason and balance to the process, and take back the power and authority invested in you by the 

electorate. Let size trump whim and hold these Federal bureaucrats accountable to the public law. 

Thank you very much. 

[The prepared statement of Mr. Stilley follows:] 

PREPARED STATEMENT OF JOHN M. STILLEY, PRESIDENT, AMERIKOHL MINING, INC. 

Good morning Mr. Chairman, members of the House Natural Resources 

Committee. My name is John Stilley and I am the President of Amerikohl Mining, 

Inc. which is headquartered in Butler, Pennsylvania. I am also President of Patriot 

Exploration Corp. and Amerikohl Aggregates, Inc. 

39 

Amerikohl mines coal by the surface mining method in 13 Pennsylvania counties. 

Last year we produced approximately one (1) million tons of coal and employed 120 

workers. Since 1978, we have completed mining of over 300 separate mine sites and 

have successfully reclaimed the land to productive post-mining uses including parks, 

residential communities, working farms, and forestland. Approximately 1/3 of these 

sites consisted of areas which had been mined in the 1940s and 1950s when no reclamation was required to be done. Amerikohl has won over 65 awards for outstanding reclamation work, has reclaimed over 15,000 acres of abandoned mine 

lands and restored miles of streams at no cost to taxpayers. 

We are also in the stone and natural gas businesses. This year we will produce 

1.25 million tons of stone and aggregates used to build and rehabilitate 

Pennsylvania’s infrastructure. Additionally we currently operate over 200 wells, producing gas and oil, from the Upper Devonian formation and participate in the drilling and production from 28 Marcellus dry gas wells which are all in Pennsylvania. 

I am also here today on behalf of the Pennsylvania Coal Alliance (PCA), a state 

trade association representing the interests of the state’s bituminous coal mining 

industry. 

Pennsylvania is the Nation’s fourth leading coal producing state, with about 67 

million tons of both anthracite and bituminous coal mined in 2013. 

The coal industry is a major contributor to Pennsylvania’s economy. Its annual 

economic benefit to the Commonwealth exceeds $4 billion and it is responsible for 

the creation of almost 40,000 direct and indirect jobs. 

Most of the coal produced in Pennsylvania is used to generate affordable and 

reliable electricity. 

I appreciate being asked to testify today on the potential impacts for mining if 

the Northern Long-Eared Bat (NLE) is listed as an endangered species. 

Because of time constraints, I have attached, for the record, specific comments 

submitted by the PCA to the U.S. Fish and Wildlife Service (FWS) on this matter. 

These comments are detailed, Pennsylvania-specific and highly relevant to this 

proceeding. 

My testimony will highlight our major concerns with such action and, if time permits, I would like to address the committee on an important overarching issue that 

is a critical impediment to the future viability of coal mining. 

Range—The NLE Bat has a much larger range and a greater presence in 

Pennsylvania than the Indiana Bat. (As a frame of reference, the total amount of 

protected Indiana Bat habitat in Pennsylvania today totals over 3 million acres). A 

listing would therefore, severely restrict any permitted earth moving activity proposed within a broad geographic area, particularly among the mineral extraction industry. The result would be permit delays and increased business costs without any 

assurance of commensurate environmental benefits. 

Disease Not Habitat Issue—The NLE Bat has been hard-hit by White-Nose 

Syndrome (WNS), especially in the United States. Indeed, the FWS repeatedly recognizes that the WNS, not any human activity, alone is responsible for the major 

impacts to the NLE Bat that have been reported. 

Any species protection requirements (e.g. tree clearing restrictions) that would accompany a Federal listing will not address the WNS impact on NLE Bats. It would 

be senseless to impose significant costs on a multitude of industries whose activities 

would not affect the bat’s population with restrictions that would not in any measurable manner preserve the species. 

Sufficiency and Accuracy of Data—Even the FWS recognizes that there has 

been ‘‘. . . substantial disagreement regarding the best available science . . .’’ as it 

relates to the NLE Bats current and predicted population trends and threats. Given 

the significant permit-related implications of a proposed listing, unless science is 

available to justify the action and unless reasonable expectations exist to demonstrate that such action would produce the intended benefit, the FWS should not 

proceed with a designation. On this particular issue, both parameters—science and 

expectations—are noticeably lacking. 

COST IMPLICATIONS

Increased Costs Associated With Bat Mist Netting 

In 2014, the USFWS issued a 2014 Indiana Bat Summer Survey Guidance 

Overview which provided the protocol for conducting bat surveys in Pennsylvania, 

which is within the Northeast Region (Region 5). While the initial intent was to reissue range-wide survey guidelines, the Northeast Region imposed a much higher 

level of survey effort (mist netting and acoustic) than other FWS regions. For ‘‘nonVerDate Mar 15 2010 11:33 Jun 25, 2015 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6621 J:\00 FULL COMMITTEE\00SE08 2ND SESS. PRINTING\89831.TXT DARLEN
40 

linear’’ projects, which are most common for the mining industry, the following increases in effort and costs have been observed over the past several years. 

Year Required Survey Effort/Site Increase in Effort Approximate Cost/Site 

2014 42 net nights/123 acres of suitable habitat 10.5x $55,000 

2013 24 net nights/123 acres of suitable habitat 6x $30,000 

2012 4 net nights/123 acres of suitable habitat — $ 5,000 

As you can see, the level of bat survey effort has increased more than 10-fold over 

the past 3 years. 

Example: If a mining company has a 500 acre forested site, it would cost roughly 

$275,000 to conduct a bat survey in Pennsylvania and the northeast region. 

Telemetry Costs 

If the proposed listing of the NLE Bat proceeds, any NLE bat captures will require radio telemetry work in order to locate roosting trees for individual bats. For 

each NLE Bat (and Indiana Bat) captured during a mist net survey, it costs approximately $7,000 to track and monitor each individual bat. 

During the 2014 mist netting season (May 15 to August 15), a mid-size environmental consulting firm in Pennsylvania captured 55 NLE Bats in Pennsylvania, 

Ohio, and West Virginia. This equates to an additional $385,000 of costs that the 

industry will shoulder without any assurances of species protection. 

Miscellaneous Cost Considerations 

Additional costs associated with preparation of Habitat Conservation Plans 

(HCPs), tree clearing restrictions, and long term avoidance measures are also significant and need to be considered when discussing the economic impacts associated 

with the proposed listing of the NLE Bat. 

Permitting Impacts—In addition to costs, unjustifiable and unpredictable 

Federal action can wreak havoc on our ability to obtain permits, a prerequisite to 

actual mining. 

Due to the nature of the operation, permit delays are most troublesome for 

surface mine operators. 

Since surface mine projects in Pennsylvania are significantly smaller in terms of 

reserves and production than underground mine operations and are completed in 

shorter time frames, permits for surface mining are required on a more frequent 

basis. As such, indeterminate permit delays acutely affect this type of mining method more than other type of mining. 

For example, Amerikohl generally operates between 8 to 10 mining sites on an 

ongoing basis in a given year. On average, it takes us about 9 months to complete 

a job. Consequently, we are continually applying for permits to mine. Delays on permit issuance challenge the company’s ability to maintain continuity of operations, 

meet our contractual supply obligations and keep our men and women working full 

time. 

In addition, most of Pennsylvania’s easily accessible surface coal reserves have already been mined and a high percentage of our remaining reserves are off-limit 

because of unilateral and unjustifiable regulatory actions, like this proposed listing, 

that more often than not are precipitated at the Federal level. 

When all factors are considered, surface operators have very little viable options 

left on where to mine. Permitting restrictions further reduce these options and unless we get a more timely and predictable process, our remaining reserves will be 

sterilized, mining derived income and jobs will be lost and we all lose the benefits 

of cheap and reliable coal based electricity. 

Implementation—Although the FWS announced on June 30 a 6-month extension on any final decision regarding a listing, the Service’s State College Regional 

Office is treating permit reviews as though the listing has already been made. 

In response to a permit application for a limestone quarry that I am in the process of attempting to secure, I was instructed via letter by the field office that the 

site is located within the range of the NLE bat. Although the species is not listed, 

the letter cautioned us to address this issue in the permit or face project delays if 

a listing is finalized. 

So, despite the FWS’ acknowledgement about the scientific uncertainty associated 

with the available data for making a determination, despite its announcement to 

defer a decision until April 2, 2015, to clarify and ‘‘fully analyze’’ the data, and 

without any justifiable certainty that a proposed activity will indeed threaten the 

continued existence of NLE bats, the Pennsylvania field office is instructing permit 

41 

applicants to implement protective measures for a non-listed species to avoid permit 

delays. 

This brings me to my final, overarching comment—the regulatory process is in 

turmoil, devoid of science and commonsense; defined by standards that are constantly changing pursuant to regulatory whim, not statutory or regulatory mandates; and driven by a select few who believe they know what is in the public’s best 

interest. 

Overarching Concern—It would be easy to simply refer to this situation as the 

result of a deliberate and targeted assault on the coal industry. Clearly, the Obama 

administration’s intent is to end mining and transform America’s usage away from 

coal. 

The administration’s actions are certainly a challenge to the future viability of the 

industry and its workforce, as well as the price and reliability of electric generation. 

But the impacts of these actions are more profound than a war on coal. 

Perhaps, most insidious is the manner in which these requirements are being applied—by policy, not by legislation or regulation. Under the Obama administration, 

Federal agencies have steadily usurped permitting and enforcement authority heretofore reserved to states by establishing through policies restrictions on both the 

mining and use of coal that are harsh, misguided and not supported by science. As 

a result, mining permits are delayed or denied, jobs are lost, and coal reserves are 

unnecessarily sterilized. 

This Federal overreach tramples on public accountability and transparency while 

eroding our system of checks and balances that is the core of a true democracy. 

My most important recommendation that I can make to this committee today is 

to restore reason and balance to the process, let science trump whim and hold these 

Federal bureaucrats accountable to public law. 

Thank you. 

Attachment: Pennsylvania Coal Alliance Comments 

ATTACHMENT 

PENNSYLVANIA COAL ALLIANCE, 

HARRISBURG, PA, 

JANUARY 2, 2014. 

Via Docket submittal at www.regulations.gov 

Public Comments Processing 

Attn: FWS–R5–ES–2011–0024 

Division of Policy and Directives Management 

U.S. Fish and Wildlife Service 

4401 N. Fairfax Drive 

MS2042–PDM 

Arlington, VA 22203 

Re: Docket No. FWS–R5–ES–2011–0024—Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Eastern 

Small-Footed Bat and the Northern Long-Eared Bat as Endangered or 

Threatened Species; Listing the Northern Long-Eared Bat as an Endangered Species 

To Whom It May Concern: 

The Pennsylvania Coal Alliance (PCA) respectfully submits the following 

comments regarding the U.S. Fish and Wildlife Service’s (USFWS) request for comments pertaining to the 12-month Finding on a Petition to List the Northern LongEared Bat (NLE) as a Threatened or Endangered Species and to NOT list the 

Eastern Small-Footed Bat, as noticed in the October 2, 2013 Federal Register (78 

Fed. Reg. 61046), and the extension of the comment period in the December 2, 2013 

Federal Register (78 Fed. Reg. 72058). 

PCA is the principal trade organization representing underground and surface bituminous coal operators in Pennsylvania, as well as other associated companies 

whose businesses rely on coal mining and the thriving coal economy. PCA member 

companies produce almost 80 percent of the bituminous coal mined annually in 

Pennsylvania, which totaled nearly 60 million tons in 2012. PCA member companies 

operations are subject to both state and federal laws for the protection of threatened 

and endangered species. Accordingly, PCA has an immediate interest in the 

42 

1 Ibid. 

2Found at: http://www.fws.gov/informationquality/topics/InformationQualityGuidelinesrevised 

6_6_12.pdf. 3 Ibid, page 12. 

4Found at: http://www.cio.noaa.gov/services_programs/pdfs/OMB_Peer_Review_Bulletin_m05- 

03.pdf. 5 Ibid, page 21. 

USFWS’ intent to list the Northern Long-Eared bat as a Threatened or Endangered 

Species and not to list the Eastern Small-footed Bat under the Endangered Species 

Act of 1973. 

General 

In the Federal Register notice, USFWS indicated they have determined that the 

NLE is in danger of extinction, predominantly due to the threat of White Nose 

Syndrome (WNS). PCA understands the damage WNS has inflicted on the NLE, as 

well as other bats. However, we disagree with the USFWS’ proposed rule to list this 

species as Endangered, and we believe not enough data and information has been 

collected range wide to support a Threatened designation for the NLE. 

Listing the NLE as Threatened or Endangered will have potentially significant 

permit-related regulatory implications for our members’ operations with no positive 

effect on the bats. 

Accordingly, we offer the following specific comments: 

1. It is Premature and Scientifically Inappropriate to List the NLE Species 

Without Peer Reviewed Data. 

The Endangered Species Act requires the USFWS to determine the status of a 

species on the basis of the best scientific and commercial data available after conducting a review of the status of the species. In the Federal Register notice, USFWS 

indicates they ‘‘will seek peer review’’ and are ‘‘seeking comments from knowledgeable individuals with scientific expertise to review our analysis of the best available 

science and application of that science and to provide any additional scientific information to improve this proposed rule.’’ The notice goes on to state that ‘‘our final 

determination may differ from this proposal.’’ 1

Because the proposed rule has not undergone peer review, it may not reflect the 

best scientific and commercial data available, as required by Section 4 of the Act. 

The peer review process ensures that any proposed listing meets the requirements 

of the Endangered Species Act of 1973 and allows a critique of USFWS’ work, as 

well as ensuring that any additional scientific information is considered by the 

USFWS ahead of their actions. 

The June 2012 USFWS document entitled, ‘‘Information Quality Guidelines and 

Peer Review,’’ 2 outlines the USFWS policy and procedures for reviewing, substantiating, and correcting the quality of information it disseminates to the public. Part 

VI contains information quality methods and the USFWS guidance on peer review 

of influential information. This section expands on peer review being conducted 

prior to the public comment period, specifically stating, ‘‘. . . peer review prior to 

the public comment period should be considered.’’ 3

We also agree that this step should occur before the USFWS proposes to list the 

species in the Federal Register as Threatened or Endangered and as such, the decision to list is premature. 

The USFWS’ Information Quality Guidelines and Peer Review also recognizes the 

White House Office of Management and Budget’s Final Information Quality Bulletin 

for Peer Review.4 That document discusses the timing of peer reviews suggesting 

early peer review leads to a better end product, and recognizes that ‘‘peer review 

should precede an opportunity for public comment to ensure that the public receives 

the most scientifically strong product (rather than one that may change substantially as a result of peer reviewer suggestions.’’ 5

The Endangered Species Act of 1973 requires USFWS to base its decisions on best 

available science. Given we do not have the data, we are unable to discern if the 

data USFWS utilized for these proposed actions went through peer review. Again, 

USFWS should not be basing its proposed listing decisions on data that has not 

been subjected to the peer review process by qualified specialists. 

43 

6Found at: http://www.pabulletin.com/secure/data/vol42/42-32/1555.html. 

7 At the time of our September 10, 2012 comments, all the 2011 data had not yet been reviewed and tabulated. Even assuming there were not additional bats added to the 2010–2011 

total (a most unlikely assumption), the data for the period 2009–2011 does not reflect a decline 

in the NLE population. 

2. There is Insufficient and Incomplete Data to List the NLE and to Allow 

for Substantive Comments. 

Throughout the entire Federal Register notice discussion, the USFWS acknowledges and notes there are many unknowns with respect to the NLE and WNS. For 

example, there is insufficient data regarding: 

• NLE hibernation patterns 

• NLE migration patterns 

• NLE population mortality and susceptibility effects due to WNS 

• The overall understanding of WNS and its effects on bats 

This information is vitally important to the determination of the proper course of 

action regarding the NLE. And while we understand that it is the USFWS’ mission 

to protect endangered and threatened species, for USFWS to act on a petition to list 

the NLE bat species based on inadequate data and without any demonstration that 

the listing would preserve or assist in the recovery of the NLE species is not a prudent use of the Service’s time and budget—not to mention the resulting significant 

economic impact to the Pennsylvania coal industry to comply with the requirements 

that would result from the listing of the NLE bat. 

Further, we are very concerned at the references in the Notice to ‘‘unpublished 

data from Pennsylvania’’ and data that has not been peer reviewed. In an attempt 

to provide substantive and meaningful comments, PCA requested the unpublished 

data for Pennsylvania from the USFWS via email and received no data. We verbally 

requested the same information from the Pennsylvania Game Commission and also 

received no information. It is impossible for us to provide meaningful, scientificbased information to the USFWS without access to all available data. 

However, as part of PCA’s September 10, 2012 comments submitted to the 

Pennsylvania Game Commission in response to its Notice of Request for Comments 

relating to possible measures to protect the NLE and two other bats,6 we provide 

you with the following analysis which illustrates that Pennsylvania data calls into 

question support for an endangered listing for the NLE. 

As noted in our comments to the Pennsylvania Game Commission, a preliminary 

review of bat capture data from four projects which were to be reported in 2012 to 

the Pennsylvania Game Commission by a PCA member company indicates that two 

of the bat species—the Little Brown and the NLE, remain common throughout the 

western portion of the state where the surveys were conducted. The data was recorded from 547 bat captures at 80 net sites in Armstrong, Indiana, Clarion, 

Venango, Somerset, and Jefferson Counties. As can be seen in the chart below, approximately 27% of the bats captured were NLE and approximately 26% were Little 

Brown bats. Both species were captured at an average of 64% of the sites that were 

netted on these four projects. 

Moreover, summer bat netting data from the PA Game Commission (Attachment, 

named ‘‘Exhibit 2’’) for the years 2009 and 2010–11 7 indicates that the number of 

NLE captured in 2010–11 was 8,554, which is a substantial increase over the 4,298 

NLE netted during the prior period. Also, a summary of bat survey contractor netting activities for Pennsylvania from 1999 through 2010 (Attachment, named 

‘‘Exhibit 3’’) actually evidences an upward trend in captures of the NLE. 

2012 PA 


89831.003.eps
44 

8 78 Fed. Reg. 61046 (October 2, 2013), 61061. 

9 Ibid, 61058. 

10 Ibid. 

3. The NLE is Already Protected Due to Extensive Protection Measures for 

Other Bats. 

The USFWS states in the Federal Register notice that conservation methods are 

already underway to protect the NLE, and 

‘‘Although there are various forms of habitat destruction and disturbance 

that present potential adverse effects to the northern long-eared bat, this is 

not considered the predominant threat to the species. Even if all habitatrelated stressors were eliminated or minimized, the significant effects of 

WNS on the northern long-eared bat would still be present.’’ 8

The Federal Register Notice itself further states that ‘‘the eastern small-footed bat 

and northern long-eared bat have likely benefited from the protections given to the 

Indiana bat and its winter habitat, as both species’ ranges overlap significantly with 

the Indiana bat’s range.’’ 9

In PCA’s September 30, 2012 comments to the Pennsylvania Game Commission 

in response to its Notice of Request for Comments relating to possible measures to 

protect the NLE and two other bats, we indicate that extensive protections already 

afforded to the state- and federally-listed Indiana Bat are benefiting the above bat 

species. 

Before a permit to conduct coal mining activities in Pennsylvania can be issued, 

a diversity index search must be conducted to determine whether the area of the 

proposed activity is located within a 10-mile radii of any locations where Indiana 

Bats hibernated, were captured, or where maternity roosting occurred. 

If the project is located for example within a 10-mile radius of one of the 19 

known Indiana Bat hibernacula as alleged by the Pennsylvania Game Commission, 

the applicant must submit a Protection and Enhancement Plan which, among other 

things, precludes the applicant from cutting any trees during specific months of the 

year and which further obligates the applicant to implement specific measures to 

protect and enhance the Indiana Bat. 

Given that the NLE appear to share hibernacula with the Indiana Bat, and significant protective measures are already being implemented to protect the Indiana 

Bat, by default, the NLE. The data we discussed above from our September 30, 2012 

comments to the PGC supports this assertion. 

As an example, Fayette County in southwestern Pennsylvania allegedly has two 

Indiana Bat hibernacula. Drawing a 10-mile radius around each location (which 

does not appear to overlap), you encompass an area containing approximately 

402,000 acres, or almost 80% of Fayette County’s total area of approximately 

510,000 acres. PCA asserts the existing Indiana Bat conservation management 

measures are, by default, already protecting the NLE species in Fayette County. A 

similar result is present in other Pennsylvania counties where mineral extraction 

occurs, including Somerset, Beaver and Lawrence Counties. 

Indeed, even accounting for some overlap in the protective radii around the aforementioned 19 known Indiana Bat hibernacula, the total amount of protected bat 

habitat in Pennsylvania already totals over 3,000,000 acres at a minimum, or close 

to ten percent of Pennsylvania. Add in all 68 of the ‘‘special concern’’ hibernacula 

periodically monitored by the Pennsylvania Game Commission, the amount of protected area increases to almost 49 percent of Pennsylvania. 

Because the range of the NLE in Pennsylvania overlaps with the Indiana Bat, according to the data PCA has available to us, all conservation management efforts 

that are currently utilized here in Pennsylvania to protect the Indiana Bat, serve 

to protect the NLE as well. 

4. Bat Conservation Management Actions Need to Address WNS. 

We are aware of the requirements to provide a means for listing species as endangered and giving them limited protection, and the associated conservation and recovery planning within the context of the Endangered Species Act. However, the 

connection between conservation management actions for the NLE bat, and bats in 

general, with the primary threat of WNS are out of sync. USFWS states: 

‘‘no other threat is as severe and immediate to the northern long-eared bat’s 

persistence as the disease, white-nose syndrome (WNS).’’ 10

45 

11 Ibid, 61061. 12 Ibid, 61066. 13http://www.fws.gov/northeast/pdf/white-nosefaqs.pdf. 

USFWS further states, 

‘‘Although there are various forms of habitat destruction and disturbance 

that present potential adverse effects to the northern long-eared bat, this is 

not considered the predominant threat to the species. Even if all habitatrelated stressors were eliminated or minimized, the significant effects of 

WNS on the northern long-eared bat would still be present.’’ 11

And, 

‘‘Although conservation efforts have been undertaken to help reduce the 

spread of the disease through human-aided transmission, these efforts have 

only been in place for a few years and it is too early to determine how 

effective they are in decreasing the rate of spread.’’ 12

Furthermore, information on USFWS’ website admits to a lack of knowledge 

surrounding WNS and its cause.13

Pennsylvania coal mining activities typically are not of the type that would compromise bat habitat and reproduction areas. Yet potential permit-related restrictions 

on our regulated members due to conservation management measures would impose 

resource burdens that would fail to address the primary driver behind this proposed 

listing by USFWS—the effect of WNS on NLE. 

Given this, we suggest the USFWS’ efforts should be directed to completing additional research to determine the exact original cause of WNS, possible treatment 

strategies for bats, assessing under what conditions the fungus is transmitted and 

how it spreads, determining what the optimal environmental conditions are that 

allow the growth and transmission of the fungus, determining what is driving the 

spread of the fungus, and determining the differences in those colonies affected and 

unaffected by WNS. Only when this critical information is known would USFWS 

then be able to determine appropriate listing actions, if necessary. It is inappropriate and scientifically unwarranted to take action to list the NLE without this 

knowledge. 

5. Lack of Information Regarding Critical Habitat 

In the Federal Register notice, USFWS identifies the situations at 50 CFR 

424.12(a)(2) under which critical habitat is not determinable: 

• Information sufficient to perform required analyses of the impacts of the 

designation is lacking, or 

• the biological needs of the species are not sufficiently well known to permit 

identification of an area as critical habitat. 

The notice goes on, 

‘‘We reviewed the available information pertaining to the biological needs of 

the species and habitat characteristics where this species is located. Since information regarding the biological needs of the species is not sufficiently well 

known to permit identification of areas as critical habitat, we conclude that 

the designation of critical habitat is not determinable for the northern longeared bat at this time.’’ 

These statements, combined with other statements found throughout the Federal 

Register notice serve to reinforce PCA’s position that existing data does not support 

an endangered listing and there is insufficient data to support a Threatened listing 

of the NLE. 

The goal of the Endangered Species Act of 1973 is to protect and preserve species. 

It is irrelevant whether critical habitat is ‘‘determinable’’ because no critical habitat 

designation will serve to protect any bats against WNS. 

6. USFWS Decision NOT to List Eastern Small-footed Bat is Appropriate. 

In the Federal Register notice, the USFWS indicates the factors contributing to 

their decision NOT to list the Eastern Small-footed bat as threatened or endangered 

including: 

• Eastern Small-footed bats appear to be less susceptible to WNS than other 

cave bat species, (these factors include hibernacula selection, total time spent 

hibernating in hibernacula, location within the hibernacula regarding lower 

humidity and higher temperature fluctuations), 

46 

14http://www.fws.gov/Endangered/improving_ESA/listing_workplan_FY13-18.html. 15http://www.fws.gov/endangered/improving_esa/FWS%20Listing%20Program%20Work 

%20Plan%20FAQs%20FINAL.PDF. 

• solitary roosting behavior, 

• insignificant population declines, 

• existing State listings, and 

• less susceptible to mortalities caused by man-made equipment. 

We support the USFWS’ position NOT to list the Eastern Small-footed bat as 

threatened or endangered. 

7. USFWS Agreements with External Parties are Precluding Solid Science. 

On a bigger picture, the USFWS signed an agreement with the Center for 

Biological Diversity on July 12, 2011 requiring the Agency to make initial or final 

decisions on whether to add hundreds of imperiled plants and animals to the 

Endangered Species list by 2018. 

The USFWS subsequently developed a Listing Program Work Plan to address the 

very large increase in the number of species petitioned for listing.14 According to 

the USFWS’ Listing Program Work Plan Questions and Answers, 

‘‘. . . the Service was petitioned to list an average of 20 species per year from 

1994 to 2006. By contrast, since 2007, the Service has been petitioned to list 

more than 1,250 species, nearly as many species as the agency listed during 

the previous 30 years of administering the ESA. The Service was petitioned 

to list 695 species in 2007, 56 species in 2008, 63 species in 2009, and 451 

species in 2010 . . .. The deadlines for responding to this large increase in 

petitions, driven in large part by these megapetitions, have overwhelmed the 

capacity of the Listing Program and required diverting significant human 

and financial listing resources to the task of completing findings for the petitioned species, to such an the extent that no new listing determinations were 

initiated in FY 2010. The Service published final listing determinations for 

51 species in FY10, and 13 species in FY11. Most were listed with a concurrent critical habitat designation.’’ 15

We believe the workload imposed by these mega-petitions is precluding good 

science in USFWS’ attempts to avoid legal repercussions. Furthermore, we suggest 

that USFWS financial resources that are being expended in these legal actions could 

better be utilized, for example, on WNS research. 

CONCLUSION 

Based on the above, we disagree with the USFWS’ proposed rule to list the NLE 

species as Endangered and believe not enough information is known to list it as 

Threatened. We support the decision not to list the Eastern Small-footed Bat. 

We appreciate consideration of our comments. Should you have any questions or 

comments, please do not hesitate to contact us. 

Sincerely, 

GEORGE ELLIS, 

President, PCA. 

Attachments: Exhibits 2 and 3 

47 

EXHIBIT 2 

COUNTY SUMMARY OF STATEWIDE BAT COUNTS FOR PERIOD 2009–2011 

TAKEN FROM PGC REPORTS

(ONLY A PARTIAL COUNT FOR YEAR 2011) 


89831.004.eps
48 


89831.005.eps
49 

EXHIBIT 3 

SUMMARY OF CONTRACTOR ACTIVITIES 1999–2011 TAKEN FROM PGC 

REPORTS

(ONLY A PARTIAL COUNT FOR YEAR 2011) 

The CHAIRMAN. Thank you very much for your testimony. 

Now recognize Ms. Mollie Matteson, Senior Scientist with the 

Center for Biological Diversity out of Richmond, Vermont. 

Recognized for 5 minutes. 

STATEMENT OF MOLLIE MATTESON, SENIOR SCIENTIST, 

CENTER FOR BIOLOGICAL DIVERSITY, RICHMOND, VERMONT 

Ms. MATTESON. Thank you, Chairman Hastings, Representative 

Thompson and Representative Perry. Thank you for the opportunity to testify today. 

My name is Mollie Matteson and I am Senior Scientist at the 

Center for Biological Diversity. 

The Northern Long-Eared Bat faces a grave crisis. Its plummeting populations over the last 8 years have put it on the fast 

track to extinction. It is the very kind of wildlife that needs the 

protection of the Endangered Species Act, just like the Bald Eagle, 

the Peregrine Falcon, Grizzly Bear, and other emblematic species 

of our Nation that have benefited greatly from the protection of the 

Act in the past. 

Prior to the advent of the fungal disease, White Nose Syndrome, 

the Northern Long-Eared Bat was rare, patchily distributed 

throughout its range, and almost never found in large numbers 

anywhere. Scientists have recognized that this species is vulnerable 

to a number of threats including habitat loss, and in fact, this bat 

may have been in decline even before the arrival of White Nose 

Syndrome. 

Since 2006, when White Nose Syndrome was first documented, 

the evidence has been clear; the Northern Long-Eared Bat population has plummeted. In the Northeast, once a stronghold for the 

species, scientists have estimated that the population has declined 

by 99 percent. In many bat caves, it has disappeared altogether. 

The disease is now in 25 states, taking in all of the most important 

territory for this species. According to peer-reviewed scientific models, White Nose Syndrome will eventually spread across most of 

North America. 

Prominent bat experts have referred to the precipitous loss of the 

Northern Long-Eared Bat, and six other bat species also affected 


89831.006.eps
50 

1 Ingersoll, T.E., B.J. Sewall and S.K. Amelon. 2013. Improved analysis of long-term 

monitoring data demonstrates marked regional declines of bat populations in the eastern United 

States. PLoS ONE 8(6): e65907. doi:10.1371/journal.pone.0065907. 

by White Nose Syndrome, as the worst wildlife health crisis in 

memory. Endangered Species Act protection offers the best and 

perhaps only means for saving this species from extinction. The Act 

has a 99 percent success rate at keeping imperiled species from 

going extinct. The scale of this bat extinction crisis is not something that any one state has the capacity to address. Only the 

Endangered Species Act provides the long-term and broad-scale 

framework for conservation and recovery that is required to restore 

the Northern Long-Eared Bat to healthy numbers once again. 

The Endangered Species Act is already working to recover hundreds of species in the eastern and central United States, including 

several bats, as well as birds, fish, turtles and many other creatures that not only add to the richness and beauty of this part of 

the world, but also are vital to environmental health and ultimately long-term social and economic well-being. As with currently 

protected species, the rules protecting the Northern Long-Eared 

Bat will have built-in flexibility that allows sustainable and responsible development. 

Scientists estimate that bats provide billions of dollars in crop 

protection services across the United States. The Northern LongEared Bat controls moths and beetle pests that attack timber and 

crops. Without this bat, the challenges farmers and the timber industry face will grow, not lessen. Because the Northern Long-Eared 

Bat is so depleted, it is important that we safeguard survivors from 

as much harm as possible, including harm to their critical habitat. 

Responsible environmental stewardship calls for this approach. 

This is what the Endangered Species Act is designed to promote, 

and this is what Americans wish the Act to do; to protect for future 

generations the diverse and magnificent natural treasures of this 

Nation. 

Thank you very much. 

[The prepared statement of Ms. Matteson follows:] 

PREPARED STATEMENT OF MOLLIE MATTESON, M.S., SENIOR SCIENTIST, CENTER FOR

BIOLOGICAL DIVERSITY

INTRODUCTION

The northern long-eared bat faces a grave crisis. Its plummeting populations over 

the last 8 years have put it on the fast track to extinction. It is the very kind of 

wildlife that needs the protection of the Endangered Species Act, just like the wideranging bald eagle, peregrine falcon, grizzly bear, and other emblematic species of 

our Nation that have benefited greatly from the crucial protection of the 

Endangered Species Act in the past. 

Prior to the advent of the fungal disease, white-nose syndrome, the northern longeared bat was rare, patchily distributed throughout its range, and almost never 

found in large numbers anywhere. Scientists recognized the species as vulnerable 

to a number of threats, such as habitat loss, and it may have been in decline even 

before the arrival of the disease.1

However, since 2006, when white-nose syndrome was first documented in North 

America, the trends have been clear: the population of the northern long-eared bat 

has plummeted. In the Northeast, once a stronghold for the species, the population 

has declined by an estimated 99 percent. In many bat caves, it has disappeared altogether. The disease is now in 25 states, ravaging bat populations from New 

England, to the Mid-Atlantic and Midwest, to the South. These affected areas take 

in all of the most important territory for the species. White-nose syndrome continues 

51 

2 U.S. Fish and Wildlife Service. 2013. Proposed Rule: 12-Month Finding on a Petition to List 

the Eastern Small-Footed Bat and the Northern Long-Eared Bat as Endangered or Threatened 

Species; Listing the Northern Long-Eared Bat as an Endangered Species. Docket No. FWS–R5– 

ES–2011–0024, 78 FR 61045. Oct. 2, 2013. 3 Ingersoll, T.E., B.J. Sewall and S.K. Amelon. 2013. Improved analysis of long-term 

monitoring data demonstrates marked regional declines of bat populations in the eastern United 

States. PLoS ONE 8(6): e65907. doi:10.1371/journal.pone.0065907. 4 Center for Biological Diversity. 2010. Petition to list the eastern small-footed bat Myotis 

leibii and northern long-eared bat Myotis septentrionalis as threatened or endangered under the 

Endangered Species Act. 61 pp. http://www.biologicaldiversity.org/species/mammals/ 

eastern_small-footed_bat/pdfs/petition-Myotisleibii-Myotisseptentrionalis.pdf. 5FWS, ibid. 

to advance, and according to scientific models, will eventually spread across most 

of North America. 

Prominent bat experts have referred to the precipitous loss of the northern longeared bat, and six other bat species also affected by white-nose syndrome, as the 

‘‘worst wildlife health crisis in memory.’’ The Endangered Species Act offers the best 

and perhaps only means for saving the northern long-eared bat. The Act has a 99 

percent success rate at keeping species from the brink of extinction. Further, the 

scale of the problem is not something that any one state has the capacity to address. 

Only the Endangered Species Act provides the long-term and broad scale framework 

for conservation and recovery that is required to restore the northern long-eared bat 

to healthy numbers once again. 

The Endangered Species Act is already working to recover hundreds of species in 

the eastern and central United States, including the Indiana bat and Virginia bigeared bat, as well as birds, fish, turtles, and many other creatures that not only 

add to the richness and beauty of this part of the world, but also are vital to environmental health and ultimately the long-term social and economic well-being of our 

society. As with those other federally listed species, the rules protecting the northern long-eared bat will have built-in flexibility that allows sustainable and responsible development. 

Scientists estimate that bats provide billions of dollars in crop protection services 

across the United States. The insect-eating northern long-eared bat provides a valuable population check on moths and beetles that may attack timber and crops. Without this bat, the challenges farmers and the timber industry face will grow, not 

lessen. Because the northern long-eared bat is so depleted, it is important that we 

safeguard survivors from as much harm as possible, including harm to their critical 

habitat. Responsible environmental stewardship calls for this approach. That is 

what the Endangered Species Act is designed to promote, and for the majority of 

Americans, this is what they wish the Act to do—to protect for future generations 

the diverse and magnificent natural treasures of this Nation. 

PATH TO ENDANGERMENT

Since 2006, the northern long-eared bat (Myotis septentrionalis) has declined dramatically as a result of the exotic, invasive fungal disease known as white-nose 

syndrome (WNS). In the Northeast, where the disease has been present the longest, 

the species has plummeted 99 percent.2 However, WNS is not the only threat the 

species faces. Scientists have evidence that the northern long-eared bat was in decline prior to the onset of WNS, possibly due to factors such as habitat destruction 

and fragmentation, environmental toxins, and climate change.3 Now, WNS may be 

interacting with these other dangers to cause a downward spiral that may soon 

become irreversible. For the perpetuation of the species it is vital that the scarce 

survivors are safeguarded from as many harms as possible. WNS has caused the 

sudden and dramatic shrinkage of the northern long-eared bat population, but it 

may well be these other factors, if left unaddressed and unmitigated, that could finish the species off. The northern long-eared bat is clearly in danger of extinction 

throughout all or a significant portion of its range, and as a matter of both law and 

responsible conservation policy, the FWS must designate the species as endangered. 

The Center for Biological Diversity submitted a citizen petition to list the eastern 

small-footed bat and the northern long-eared bat on January 21, 2010.4 On October 

2, 2013, the U.S. Fish and Wildlife Service (FWS) proposed to list the northern longeared bat (Myotis septentrionalis) as endangered.5 The FWS then decided earlier 

this summer, primarily in response to listing opponents, to extend the period for 

final determination another 6 months, to April 2, 2015. 

52 

6http://www.jsonline.com/news/wisconsin/states-raise-concerns-about-bat-protection-planb99253534z1-256378541.html. 7http://www.nwhc.usgs.gov/publications/wildlife_health_bulletins/WHB_2014-04_WNS_ Updates.pdf. 8http://www.nebwg.org/AnnualMeetings/2014/index.html. 

SPECIES’ PRECIPITOUS DECLINE WARRANTS ENDANGERED LISTING

Populations of the northern long-eared bat have plummeted as a result of WNS. 

In the northeastern United States, where WNS has been present longest in North 

America, winter surveys demonstrate that the northern long-eared bat has declined 

by 99 percent. Summer surveys are generally in line with these findings. The 

Northeast is also the region in which the species was historically most abundant; 

a decline in that region has a disproportionately large impact on the species’ overall 

status. No solution yet exists for WNS. So long as this is the case, the disease will 

likely spread and cause similar mortality among northern long-eared bats in other 

regions. Although the primary threat to the northern long-eared bat is WNS, it is 

an established biological principle that small populations of a species are more vulnerable to discrete threats than large populations are. For that reason, the severely 

reduced northern long-eared bat population is more at risk from other threats, including those from human activities, than prior to WNS. 

We take issue with the claims of those calling for FWS to list the northern longeared bat as threatened rather than endangered. Population declines of more than 

90 percent in the core of its range, with more declines predicted due to WNS, constitute a present ‘‘danger of extinction throughout all or a significant portion of its 

range.’’ The decreases do not represent a mere ‘‘[likelihood] to become an endangered species within the foreseeable future throughout all or a significant portion 

of its range.’’ In other words, for the northern long-eared bat, endangerment is not 

just a possibility on the horizon—endangerment is already here. 

NON-EXISTENT OR INADEQUATE PROTECTIVE MEASURES

No regulations or conservation plans currently exist that address the widespread 

and severe decline of the northern long-eared bat, and counter the various threats 

the species faces. The species is listed as state endangered or threatened in several 

states: ‘‘endangered’’ in Delaware, Massachusetts, and Vermont; ‘‘threatened’’ in 

Wisconsin; proposed for endangered in Maine. However, it has no protected status 

or only minimal recognition as a vulnerable species in many more states within its 

range. Unfortunately, none of the state listings provide strong regulatory protection 

against threats such as destruction of forested roosting habitat that, together with 

WNS, could lead to the extinction of the species. State-level protections also do not 

provide range-wide recovery planning, habitat conservation plans for activities that 

may take listed bats, or Federal funding for research and management. 

Unfortunately, some state natural resource agencies in the upper Midwest have 

expressed opposition to the needed Federal protection of northern long-eared bats.6

Directors of Minnesota, Wisconsin, Michigan and Indiana natural resource agencies 

requested in an April 2014 letter to FWS that the agency delay protection of the 

northern long-eared bat because of the potential impact on timber operations and 

private landowners. Yet, none of these states have their own programs to conserve 

and recover the species that are equivalent to the protections provided by Federal 

ESA listing. 

WNS CONTINUES TO SPREAD AND NORTHERN LONG-EARED BAT CONTINUES TO DECLINE

The U.S. Geological Survey/National Wildlife Health Center reported this April 7

that WNS spread to three new states—Arkansas, Michigan, and Wisconsin—in the 

winter of 2013–14. The disease also continued to spread within the states where it 

had been previously documented, intensifying its impact in the Midwest, Southeast, 

and South. In Canada, the disease spread last winter within Nova Scotia, New 

Brunswick, Quebec and Ontario. The extent of the disease now reaches from the 

49th parallel in Quebec south to Paulding County, Georgia, and from Prince Edward 

Island west almost to the Missouri/Kansas border. 

The following information was reported at the 2014 Northeast Bat Working 

Group 8 annual meeting in January: 

• In summer mist net surveys in New York, northern long-eared bats have 

notably declined over the last several years. Acoustic surveys show a dramatic 

decline of all Myotis species, which include the northern long-eared bat. 

• In Pennsylvania, numbers of bats at summer roosts are down, as are numbers 

of bats at hibernacula. The northern long-eared bat was down by 99.2 percent 

53 

9 Johnson et al. 2013. Nightly and yearly bat activity before and after WNS on the Fernow 

Experimental Forest in West Virginia. 

in hibernacula surveys in 2013, as compared to pre-WNS counts. The number 

of contractor-conducted net surveys has grown dramatically from 390 in 2006 

to 1,087 in 2012, yet the capture rate of northern long-eared bats relative to 

its pre-WNS numbers has continued to go down. 

• In Virginia, the number of northern long-eared bats caught during summer 

mist net surveys has gone down by 96 percent compared to pre-WNS surveys. 

• In West Virginia, the northern long-eared bat was the most common bat 

species found in summer mist net surveys prior to WNS (33 percent). However, now only 20 percent of the bats captured are northern long-eared bats. 

(The report did not indicate whether total number of all bats captured has 

also declined, but this seems likely). 

A recent paper on pre- and post-WNS bat activity on the Fernow Experimental 

Forest in West Virginia reports: ‘‘Activity of little brown myotis, northern myotis, 

and Indiana myotis was lower post-WNS than pre-WNS, consistent with the species’ 

precipitous declines previously reported in WNS-affected areas in the Northeast and 

upper portions of the Mid-Atlantic.’’ 9 This study was based on summer acoustic 

surveys. 

Some opponents of endangered species listing have asserted that recent summer 

bat surveys, unlike hibernacula surveys, indicate that the northern long-eared bat 

is still abundant. However, publicly available data such as studies and surveys cited 

above paint a clear picture of ongoing and dramatic decline of the species. 

SCIENTIFIC UNCERTAINTY AND THE BEST AVAILABLE SCIENCE

The best, currently available science went into the FWS’ recommendation to list 

the northern long-eared bat as endangered, and that decision was peer-reviewed and 

supported by leading bat scientists. There is no genuine scientific uncertainty about 

whether this bat is in danger of extinction in all or a significant part of its range. 

To the extent that incomplete information about the species, white-nose syndrome, 

and other threats still exists, this is a reality of the scientific process. A listing decision cannot wait until complete scientific research has been done and no amount 

of uncertainty remains. To delay such a decision while threats are ongoing, as they 

are for the northern long-eared bat, would be ecologically and fiscally irresponsible 

because the status of the species would likely worsen in the meantime, and require 

even more aggressive, potentially expensive, action down the line to save it from 

extinction. 

THE NEED FOR ADDRESSING ALL HARMS

White-nose syndrome is the primary threat to the northern long-eared bat. However, it is not the only threat. A small population is vulnerable to losses of any kind, 

from any source. Forest clearing and fragmentation, human disturbance of caves, 

and environmental toxins, among others, are other threats to the northern longeared bat that need to be addressed if conservation and recovery efforts are to be 

effective. Just as a cancer patient would be ill-advised to stop wearing her seat belt, 

just because the major threat to her health is cancer, so too must biologists be able 

to address potential and likely harms to the northern long-eared bat, from other 

sources besides white-nose syndrome. 

CONCLUSION

The northern long-eared bat is in current danger of extinction throughout a significant portion of its range. Based on the current, best available scientific information, it qualifies for endangered status under the Endangered Species Act, and it 

is in need of that level of Federal protection to address the profound and various 

threats it faces. The Act is a tool that works, a policy that the American public supports, and in its success at preventing extinction, it is a gift that we bestow upon 

future generations. 

The CHAIRMAN. Thank you very much for your testimony. 

Now recognize Mr. Martin Melville, Owner of Melville Forestry 

Services. And, Mr. Melville, you are recognized for 5 minutes. 

54 

STATEMENT OF MARTIN MELVILLE, OWNER, MELVILLE 

FORESTRY SERVICES, CENTRE HALL, PENNSYLVANIA 

Mr. MELVILLE. Thank you very—I am going to move this thing 

closer here. So I was perhaps not as clear on my purpose for being 

here. I will say that given the pattern of ESA implementation by 

Fish and Wildlife Service, it is likely that a listing on such a broad 

scale as the Northern Long-Eared Bat would significantly impact, 

perhaps disastrously, as in the Northwest, my business, my logging 

and my peers. 

I would say that in the reading that I have done in preparation 

for this, there is not any indication that ceasing forest management 

activities would benefit the bat. It appears that the bat is a generalist, and really actually kind of does pretty well when you give it 

a variety of habitats. 

What I heard this morning though is more, so the ESA is 40 

years old and it should be updated. And there are some important 

parts of it that just really don’t seem to work. One of those was 

mentioned by our friend from Ford City who mentioned his inability to build a school. There is a clause in there somewhere about 

suitable habitat, and at one SFI workshop, I asked the facilitator 

if it was suitable habitat for a dinosaur, if that was meant that 

they were protected there and I couldn’t do any work there, and he 

said, no, that doesn’t apply because they are extinct. But the way 

that it was worded, it made it sound very clearly like if it was suitable habitat, it didn’t matter if the animal hadn’t been seen there 

for hundreds of years, it is still restricted activity. 

I see mission creep, I think, although I am not an expert in ESA, 

certainly. 

I was talking with a friend of mine this morning who is a log 

truck driver, and, you know, we live here, our office is out there, 

and we have lunch under a tree, and logging is as much a way of 

life as it is a mode of employment. And I mean I think it would 

not be too far-fetched to suggest that perhaps loggers should be 

listed at times. 

There are some important considerations, and, for loggers themselves, we are now, whether we like it or not, members of a global 

economy and we must compete on that level. And so our opportunity to raise our prices to help meet our costs is virtually nonexistent. We are in competition with hybrid markets from Eastern 

Europe and Russia, and now from South America as well. Capital 

costs keep going up. Employees are harder and harder to find. And 

a recent logging survey showed that more than 70 percent of the 

loggers nationwide, but there would be no reason to doubt that the 

numbers are similar for Pennsylvania, were operating at a 3 percent or less margin of profit. And needless to say, that in itself is 

not a sustainable arrangement. So adding another burden to this 

heap for something that will arguably not help to benefit the bat 

strikes me as sort of arcane or bizarre. 

Thank you, friends. 

55 

[The prepared statement of Mr. Melville follows:] 

PREPARED STATEMENT OF MARTIN MELVILLE, CENTRE HALL, PENNSYLVANIA

Chairman Hastings and distinguished members of the House Natural Resources 

Committee, my name is Martin Melville. I am a resident of Centre Hall, 

Pennsylvania, received a Bachelor of Science in Forestry in 1980, and have worked 

in the forest industry for the past 35 years; 20 years logging and 10 years as proprietor of Melville Forest Services. I was presented the Pennsylvania ‘‘Outstanding 

Logger Award’’ in 1997 and met the criteria of the Sustainable Forestry Initiative ®

program Master Logger in 2004. 

I also appear today on behalf of the members of the American Loggers Council, 

a national organization representing professional timber harvesters in 30 States 

across the United States with whom I have had an affiliation with for the past several years. I am pleased to have the opportunity to address the committee on the 

potential impacts that could occur should the U.S. Fish and Wildlife Service 

(USFWS) list the Northern Long-Eared Bat as a Federal Endangered Species, but 

first I would like to throw out a few statistics for you. 

The latest numbers that I have been able to gather are from 2012, taken directly 

from the American Forest and Paper Association Web site. For Pennsylvania they 

are: 

Pennsylvania employment numbers in the forest products industry—50,103 

Payroll—$2,622,276 

With an estimated 274 manufacturing facilities ranging from mill work, 

treating plants, sawmills and paper mills, the total value of industry shipments in 2012 was $14,815,029,000.00 with state and local tax payments 

of $179,000,000.00. 

Forests compose 16,577,000 acres in Pennsylvania, covering 57 percent of 

the state. Of that 16.6 million acres, 11.6 million are privately held. 

As you know, the Northern Long-Eared Bat is experiencing significant declines in 

parts of its range due to White Nose Syndrome (WNS). In its proposed listing, the 

USFWS has affirmed that WNS is the most significant threat to the NLEB and the 

species would most likely not be imperiled if not for this ‘‘disease’’ and that ‘‘habitat 

concerns and other anthropogenic factors create no significant effects alone or in combination.’’ 78 Fed. Reg. at 61072 (emphasis added). USFWS also asserts in its document that when combined with significant population reductions due to WNS, ‘‘the 

resulting cumulative effect may further adversely impact the species’’; the only 

real threat to the species is clearly a wildlife disease, not habitat modification or loss. 

There is no evidence I am aware of indicating timber harvest restrictions will improve the NLEB’s chances of surviving the WNS which is leading to the population 

decline, yet the Interim Conference and Planning Guidelines issued by the FWS in 

January of this year suggest a completely unrealistic, and in my view, unnecessary 

set of constraints on forest management during nearly every seasonal period of bat 

habitat use. These restrictions include vaguely worded restrictions on prescribed 

burning at various times of the year, restrictions on tree harvesting of all trees larger than 3 inches DBH and larger, and ambiguous direction to ‘‘Avoid reducing the 

suitability of forest patches with known NLEB use.’’ In essence, although the species 

has been shown to be present in forest with a variety of age classes, management 

regimes, and in fact may depend upon management to perpetuate various habitat 

features over time, the Guidance seems to suggest that creating 5-mile radius ‘‘no 

management’’ zones around known habitat as the best way to conserve bats. 

There is no evidence to suggest these measures have anything to do with the 

spread of White Nose Syndrome, nor that they would do anything to prevent very 

high levels of mortality should WNS spread throughout the bat’s range, as the 

USFWS speculates it will. 

I would argue current forest practices greatly enhance roosting and rearing habitat. In fact it may be true leaving dead snags and trees spaced apart from one 

another, such as those associated with logging, may separate the NLEB preventing 

incidental contact which spreads WNS. 

This is supported by the fact where WNS is not yet present; populations of NLEB 

appear to be quite robust. For instance, the NLEB is one of the most frequently captured bats in the mist net surveys on the Black Hills National Forest in South 

Dakota, one of the most heavily managed National Forests in the country. In fact 

it is my understanding prior to the introduction of WNS, NLEB’s were regarded as 

‘‘most common’’ in the Northeastern portion of their range. States ranging from 

56 

Northern New England through the lower portion of the Lake States and Indiana 

contain a variety of habitat types, forest ownerships, and land use practices. This 

strongly suggests the bat is not dependent on a particular type of habitat much less 

a particular class of trees. 

While UFWS may not take economics into consideration when making decisions, 

it should recognize the fact it takes dollars generated from tax paying businesses 

to have a clean stable environment both socially and ecologically. The forest products industry is one of the largest industries in the state of Pennsylvania generating 

over 14 billion dollars to our state economy. 

As a logger, and part of the forest products industry here in Pennsylvania, I am 

committed to continuing forestry practices that enhance NLEB habitat. Any premature listing of an endangered species, or listing without taking into account economic considerations to the state, could have a negative impact to Pennsylvania’s 

Forest Products Industry, including timberland owners and loggers as well as a significant impact to our state’s economy. 

Rural forest dependent communities are still reeling in the aftermath of the great 

recession. While housing starts have improved, they have yet to return to prerecession levels, and I and those in our industry that I represent are still struggling. 

Over the past several years, I estimate that we have lost approximately 30 percent of our logging capacity due primarily to the downturn in the housing markets 

and the curtailing of mills producing solid wood products for that market. We are 

just now beginning to see some improvement in those markets, but to propose an 

Endangered Species listing that is based on a disease rather than loss of habitat, 

that would restrict my ability to manage and harvest timber could spell disaster for 

my family owned business. 

I strongly recommend the emphasis on Northern Long-Eared Bat protection be focused on stopping the spread of White Nose Syndrome and not destroying well managed forests or the communities with an ESA listing that will have no impact on 

the viability of the species. 

Thank you for the opportunity to testify and I would be happy to try and answer 

any questions that you might have. 

The CHAIRMAN. Thank you very much for your testimony. 

I now recognize Mr. Paul Lyskava, Executive Director of the 

Pennsylvania Forest Association. You are recognized for—Lyskava. 

Lyskava, is that how you—— 

Mr. LYSKAVA. That is correct, yes. 

The CHAIRMAN. So I blew up the first time, but I recovered 

quickly. 

Mr. LYSKAVA. That is OK, Mr. Chairman, members of my family 

do the same. 

The CHAIRMAN. Well, I feel better about that then. 

STATEMENT OF PAUL LYSKAVA, EXECUTIVE DIRECTOR, 

PENNSYLVANIA FOREST PRODUCTS ASSOCIATION, 

HARRISBURG, PENNSYLVANIA 

Mr. LYSKAVA. Mr. Chairman, I would like to welcome the committee to Pennsylvania, which leads the Nation in the production 

of hardwood lumber. We are proud that Pennsylvania hardwoods 

are valued across the Nation and around the world as a renewable 

and sustainably managed resource of high quality and beauty. 

With over 17 million acres of forest, Pennsylvania leads the Nation 

in the volume of hardwood growing stock. 

The decline of the Northern Long-Eared Bat and other cavedwelling bat species due to the spread of White Nose Syndrome is 

an issue that should be of concern to all. Our organization supports 

public and private research efforts to learn more about White Nose 

Syndrome, and the efforts of Federal and state agencies to restrict 

57 

recreational access to certain caves to prevent the unintentional 

spread of White Nose Syndrome by man. 

We are also taking steps within our organization to educate the 

state’s forestry and logging community on bats and White Nose 

Syndrome through training offered by our sister organization, the 

Pennsylvania Sustainable Forestry Initiative. We commend the 

U.S. Fish and Wildlife Service for its decision to provide a 6-month 

extension before its final listing determination, but we believe that 

this extension still does not provide sufficient time to address the 

existing gaps and conflicting data on Northern Long-Eared Bat 

populations and survivability. Until these gaps and conflicts are 

addressed, we believe that it is premature for the U.S. Fish and 

Wildlife Service to list Northern Long-Eared Bat as endangered. 

I would also like to stress, as the other speakers have, that the 

most significant threat to the Northern Long-Eared Bat comes from 

the White Nose Syndrome Disease, not from lack of habitat. The 

U.S. Fish and Wildlife Service, as others have stated, has gone as 

far as to state that habitat concerns and other anthropologic factors 

create no significant negative effects to Northern Long-Eared Bat, 

alone or in combination. Timber harvesting and other forestry activities are not causing a decline in the Northern Long-Eared Bat, 

nor are these activities associated with White Nose Syndrome. 

If Northern Long-Eared Bat is listed as endangered, the U.S. 

Fish and Wildlife Service will likely adopt an extensive set of restrictions on forestry activities and other tree removal activities. 

This is because the Endangered Species Act currently requires the 

Agency to maintain a focus on habitat preservation, even if habitat 

issues are not causing the risk to the species, as is in the case with 

Northern Long-Eared Bat. 

The current Endangered Species Act is poorly suited at helping 

a species which is suffering due to a wildlife disease. As others 

have stated, the habitat provisions will likely include establishing 

protection zones around hibernacula, establishing seasonal tree 

harvesting restrictions during the summer. In Pennsylvania, these 

seasonal restrictions could possibly run from as long as April 1 to 

November 15. All trees 3 inches diameter, breast height and larger, 

would be covered under these harvesting restrictions. There would 

also be additional restrictions on other non-harvesting forestry activities such as proscribed burning. Because the Northern LongEared Bat is a forest generalist, as my colleague just stated a few 

moments ago, and was prevalent—and is prevalent in 

Pennsylvania pre-White Nose Syndrome, the amount of acreage in 

the state impacted by the restrictions will be significant. As a 

forest generalist, Mr. Chairman, we mean that the Northern LongEared Bat, during the summer, can roost in a wide variety of species—big trees, small trees, living trees, dead trees; in a wide 

variety of forest types—types of forest landscapes. Because of this, 

the data recently developed by the Pennsylvania Game Commission 

and Pennsylvania Bureau of Forestry indicates that as much as 54 

percent of Pennsylvania or 15.8 million acres provides a moderate 

to high potential summer habitat use for Northern Long-Eared Bat. 

This accounts for much of the forested acres within the state. This 

also includes about 88 percent of state forest land, and 84 percent 

of state game lands. Additionally, Pennsylvania has 114 known 

58 

hibernacula which house Northern Long-Eared Bat. As a result, as 

much as 20 percent of the state could be subject to the additional 

restrictions applied to—according to the anticipated hibernacula 

protection zones. 

Mr. Chairman, if implemented, these various forestry restrictions 

across such a wide swath of Pennsylvania will basically decimate 

the state’s forest products industry. Logging would essentially become a part-time activity across much of the state. Local supply 

chains that provide logs to sawmills, paper mills and other forest 

products manufacturers will be disrupted, and it is difficult to conceive a scenario where larger production facilities will be able to 

continue to sustain their operations under such a restricted supply 

of logs. Hundreds of operations will close, with the loss of tens of 

thousands of jobs. 

What is at risk? Currently, Pennsylvania is home to more than 

2,200 forest product establishments, employing approximately 

60,000 Pennsylvanians. The listing of the Northern Long-Eared 

Bat will also impact an estimated 533,000 private forest landowners. These folks hold over 70 percent of the forested acres in 

the state. 

From Pennsylvania forest products alone, the effect of the 

Northern Long-Eared Bat will have a significant negative impact 

on Pennsylvania’s economy. In 2012, the state’s wood industry had 

over $11 billion in sales, and an overall economic impact to the 

state of $19 billion a year. And we are just one of the states where 

forestry will be negatively impacted by the Northern Long-Eared 

Bat listing. According to the National Alliance of Forest Owners, 27 

of the 38 states touched by the Northern Long-Eared Bat range 

have a sizable forest products industry presence. These states contain a total of more than 372 million acres of public and private 

timber land. The industry provides a total of 2.2 million direct, indirect and induced jobs, with a combined payroll of over $80 billion. 

Annual timber sales and manufacturing shipments equate to over 

$210 billion, with a combined contribution to the gross domestic 

products of those states of over $89 billion. 

With that, sir, I will wrap up my testimony, and look forward to 

additional questions. Thank you. 

[The prepared statement of Mr. Lyskava follows:] 

PREPARED STATEMENT OF PAUL LYSKAVA, EXECUTIVE DIRECTOR, PENNSYLVANIA

FOREST PRODUCTS ASSOCIATION

We thank the committee for the opportunity to comment on the decline of the 

Northern Long-eared Bat (NLEB) and the consideration of the species for listing as 

endangered under the Federal Endangered Species Act. 

We also welcome the committee to Pennsylvania, which leads the Nation in the 

production of hardwood lumber. Pennsylvania hardwoods are valued across the 

Nation and around the world as a renewable and sustainably managed resource of 

high quality and beauty. With 17 million acres of forest, Pennsylvania leads the 

Nation in the volume of hardwood growing stock. 

The decline of NLEB and other cave dwelling bat species due to the spread of 

white nose syndrome disease (WNS) is an issue that should be of concern for all. 

PFPA supports public and private research efforts to learn more about the impacts 

of WNS on NLEB and other bat species, and ultimately how to control, mitigate or 

eliminate WNS as a threat to bats. PFPA also supports the efforts of Federal and 

state agencies to restrict recreational access to critical bat hibernacula at this time 

to prevent the unintentional spread of WNS. 

59 

We are also taking steps to educate the state’s forestry and logging community 

on bats and WNS through training offered by our sister organization, the 

Pennsylvania Sustainable Forestry Initiative ®. We commend the U.S. Fish and Wildlife Service (USFWS) for its decision to provide a 6-month extension before its final listing determination and the re-opening 

of the comment period this summer. But we believe that this extension still does 

not provide sufficient time to address the existing gaps and conflicting data on 

NLEB populations and survivability. 

It seems that the evidence for the proposed listing of the species as endangered 

is based primarily upon significant mortality events documented at a limited number of hibernacula. While these events are dramatic, it has been documented that 

NLEB populations remain robust in portions of the species range, including midwestern and northern states where WNS is not yet documented. The USFWS and 

others have also recognized that NLEB is difficult to accurately count via cave surveys, given its preference to hibernate singularly and in small groups in recessed 

areas such as cracks, crevices and broken stalactites. Finally, there seems to be a 

consensus acknowledgment that the NLEB also hibernates in rock outcroppings in 

Pennsylvania and other areas, although these populations are not currently being 

considered. 

Additionally, while the USFWS has cited NLEB mortality of as much as 99 

percent at these hibernaculum die-offs, other research has suggested that NLEB 

population declines in Pennsylvania and nearby states may be as low as 31 percent. 

Until these data gaps and conflicts are addressed, we believe that it is premature 

for the USFWS to list NLEB as endangered. 

We would like to stress that the most significant threat to the NLEB comes from 

the WNS disease, not a lack of habitat. This fact is recognized by the USFWS and 

many environmental interests. The USFWS has gone as far as to state that habitat 

concerns and other anthropogenic factors create no significant negative effects to 

NLEB alone or in combination. Timber harvesting and other forestry activities are 

not causing a decline in NLEB, nor are these activities associated with WNS. As 

further evidence, the proliferation of WNS and reported decline of NLEB in 

Pennsylvania has occurred during a period of historically low timber harvesting in 

the state. 

We thank the committee for gathering information on the economic impacts associated with a Federal endangered listing of the NLEB. As you know, the USFWS 

will not consider economic or human impacts in its determination whether to list 

a species as threatened or endangered. 

If NLEB is listed as a federally endangered species, it will be illegal to kill, harm 

or harass a NLEB, even if unintentional. The definition of ‘take’ under the 

Endangered Species Act includes habitat impacts that could be an impediment to 

the essential behavior of the species, such as roosting or reproduction. 

If NLEB is listed as endangered, the most likely USFWS management protocols, 

based upon the USFWS Interim Guidance document published in January 2014, 

will be an extensive set of restrictions on forestry activities and other tree removals. 

This includes establishing 5-mile protection zones around known hibernacula and 

establishing seasonal tree harvesting restrictions on bats summer habitat. In 

Pennsylvania, these seasonal restrictions could possibly run from April 1 to 

November 15. All trees 3′′ DBH and larger would be covered by these harvesting 

restrictions. There would also likely be additional restrictions on other nonharvesting forestry activities, such as prescribed burning. 

The NLEB is a forest generalist during the summer, utilizing a wide variety of 

forest age classes, tree species, tree sizes, living and dead trees, as well as various 

man-made structures. For this reason and the frequency of its occurrence pre-WNS, 

the amount of acreage in Pennsylvania impacted by these restrictions will be significant. Data recently developed for the Pennsylvania Game Commission and 

Pennsylvania Bureau of Forestry indicates that 54 percent of Pennsylvania (15.8 

million acres) provides moderate to high potential summer use habitat for the 

NLEB, which accounts for much of the forested acres in the state. This includes 88 

percent of State Forests and 84 percent of State Game Lands. 

Pennsylvania has 114 hibernacula known to house NLEB. As a result, as much 

as 20 percent of the state could be subject to the additional restrictions applied to 

the anticipated hibernacula protection zones. 

If implemented, these various forestry restrictions across such a wide swath of 

Pennsylvania will decimate the state’s forest products industry. 

During the fraction of the year that forestry will be unimpeded by these NLEB 

restrictions, Pennsylvania’s forestry community is already subject to a variety of 

mandated, encouraged and voluntary restrictions on timber harvesting activities. 

This includes hunting seasons; forest roads closed or with plowing restrictions durVerDate Mar 15 2010 11:33 Jun 25, 2015 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6621 J:\00 FULL COMMITTEE\00SE08 2ND SESS. PRINTING\89831.TXT DARLEN
60 

ing winter to support snowmobile activities; best practices that encourage 

minimizing the transport of logs during the spring freeze/thaw period when paved 

roads are most susceptible to damage; and periods in the spring when it is too wet 

to log. 

As a result, logging would essentially become a part-time activity across much of 

Pennsylvania, unencumbered for only a fraction of the year. The owners and employees of these logging companies will not be able to continue their operations in 

this fashion. The local supply chain that provides logs to sawmills, paper mills and 

other forest product manufacturers will be disrupted. It is difficult to conceive of a 

scenario where larger production facilities will be able to sustain operations under 

such a restricted supply of logs. 

Even secondary forest product manufacturers of products such as cabinets, flooring, millwork, and pallets will come to find Pennsylvania as an uncompetitive place 

to base operations, as the local supply of hardwood lumber dries up when the sawmills close. 

Currently, Pennsylvania is home to more than 2,200 forest product establishments, employing approximately 60,000 Pennsylvanians. This is about 10 percent of 

the state’s manufacturing workforce. The forest product industry has a presence in 

every county of the Commonwealth. 

The listing of the NLEB as an endangered species and implementation of the suggested forestry restrictions will result in the loss of tens of thousands of these jobs 

and the closing of hundreds of businesses. 

Most of the jobs lost will be in forestry, logging and manufacturing, paying middle 

class wages and above. Most establishments that will be forced to close will be 

owned by hardworking individual entrepreneurs and families, some of which have 

been in the forest product business for generations. 

The listing of NLEB as endangered will impact forest landowners as well. 

Pennsylvania contains nearly 17 million acres of forest. Nearly 30 percent of this 

acreage (4.8 million acres) is publically owned. An estimated 533,000 private owners 

hold over 70 percent of the forested acres (11.7 million acres) in Pennsylvania. Families and individuals are the dominant group in this private category, accounting for 

54 percent (9.6 million acres) of forest in Pennsylvania. The listing of NLEB and 

associated restrictions will impede public and private landowners from their desired 

and necessary forestry practices. Furthermore, a collapse of the state’s forest products industry will lower the demand for logs, decreasing the value of timber on both 

public and private lands. Any disincentive to maintain lands as working forests provides an incentive for this land to be permanently converted to non-forest uses. 

From forestry and forest products alone, the effect of the NLEB listing will have 

a significant negative impact on Pennsylvania’s economy. In 2012, the state’s wood 

industry had $11.5 billion in sales and an overall total economic impact of $19 

billion contributed to the state’s economy. This included total direct, indirect and induced employment of over 98,000 individuals, with $5.0 billion in wages and 

salaries earned. The anticipated loss of forest product business and jobs will significantly impact these figures. Local impacts will be even more dramatic in the 

communities where forestry and forest products are the leading employer. 

Pennsylvania is just one of many states where forestry will be negatively impacted by an NLEB listing. According to the National Alliance of Forest Owners, 

27 of the 38 states touched by the NLEB range have a sizable forest products industry presence. These states contain a total of 372,535,969 acres of public and private 

timberland. The industry provides a total of 2.2 million direct, indirect, and induced 

jobs with a combined payroll of $80 billion. Annual timber sales and manufacturing 

shipments equaled $210.7 billion, with a combined contribution to state GDPs of $89 

billion. 

The negative impacts of a NLEB listing are not only economic. The associated forestry restrictions will create a significant impediment to public and private forest 

owners seeking to improve the forest habitat for other species, including other listed 

species and other bat species being negatively impacted by WNS. 

In Pennsylvania, for example, the state’s Game Commission and Department of 

Conservation and Natural Resources are working on a habitat conservation plan 

that will improve forest habitat for the benefit of the endangered Indiana Bat. The 

forest management restrictions suggested for a NLEB listing may make this plan 

unfeasible. 

The restrictions will also create an obstacle for landowners to engage in needed 

forest management practices to maintain forest health and address the impacts of 

forest diseases and invasive pests. A endangered listing of NLEB will lead to a general decline in the health of Pennsylvania’s forests. 

In conclusion, the habitat protection provisions associated with an endangered 

listing of the NLEB will have dramatic negative consequences for Pennsylvania’s 

61 

forestry industry, its forest landowners, the state’s economy and the forest habitat 

itself—all while providing no benefit to addressing the impact of WNS that threatens the NLEB. 

The USFWS needs to forego any mandated restrictions on forest management 

practices. The USFWS needs to work with other Federal agencies, state wildlife and 

forestry agencies and other stakeholder to fill the gaps in the existing data and understanding of NLEB and WNS. Finally, the USFWS and others need to remain focused on the research and efforts on the control and elimination of the WNS that 

is the actual threat to NLEB and other bat species. 

Thank you again for this opportunity to comment on this important matter. 

Attachments: 

PFPA Comments: Docket No. FWS–R5–ES–2011–0024 (August 29, 2014). 

Consensus Forest Industry Comments: Docket No. FWS–R5–ES–2011–0024 (August 29, 2014). 

PFPA Comments: Docket No. FWS–R5–ES–2011–0024 (January 2, 2014). 

ATTACHMENT 1 

PENNSYLVANIA FOREST PRODUCTS ASSOCIATION, 

HARRISBURG, PA, 

AUGUST 29, 2014. 

Docket No. FWS–R5–ES–2011–0024 

Public Comments Processing 

Attn: FWS–R5–ES–2011–0024 

Division of Policy and Directives Management 

U.S. Fish and Wildlife Service 

4401 N. Fairfax Drive, MS 2042–PDM 

Arlington, VA 22203 

Re: Final Determination on the Proposed Endangered Status for the 

Northern Long-Eared Bat, 78 Fed. Reg. 61046 (October 2, 2013)—[Docket 

No. FWS-R5-ES-2011-0024] 

Dear USFWS: 

The Pennsylvania Forest Products Association (PFPA) offers the following comments related to the above referenced proposal to list the northern long-eared bat 

(Myotis septentrionalis) as an endangered species. We thank the USFWS for its sixmonth extension for the final listing determination and the re-opening of the 

comment period. 

The following comments supplement our previous comments submitted on 

January 2, 2014, and the consensus comments submitted by coalition of forestry and 

forest product organizations (including PFPA) dated August 29, 2014. 

About PFPA: 

The Pennsylvania Forest Products Association (PFPA) is the leading trade group 

in the state representing the various sectors of the forest products industry. PFPA’s 

membership accounts for approximately three-quarters of the state’s hardwood lumber production, as well as many of the leading pulp and fiber utilizing manufacturing facilities in the state. PFPA’s members also own or manage more than one 

million acres of private forest in Pennsylvania. 

PFPA is also the administrative host and sponsor of the Pennsylvania Sustainable 

Forestry Initiative® (PA SFI®) , which has provided safety, environmental and ecological training to more than 7,000 loggers, foresters and others. It is the leading 

logger training program in the state. PA SFI® regularly includes courses related to 

wildlife, habitat and biodiversity issues as part of its continuing education opportunities. 

We offer the following additional comments on this issue and respond to the 

USFWS request for additional information. 

NLEB Population and Species Decline: 

We share the concern about the decline of northern long-eared bat (NLEB) as a 

result of white nose syndrome (WNS). It seems that the evidence for the proposed 

listing of the species as endangered is based primarily upon significant mortality 

events documented at a limited number hibernaculum. While these events are horrific, the overall science on NLEB populations and survivability currently contains 

both gaps and conflicting data. 

62 

• It has been documented that NLEB populations remain robust in portions of 

the species range, including midwestern and northern states where WNS is 

not yet documented. Even in Pennsylvania, the Pennsylvania Game 

Commission has said that NLEB is still commonly found in parts of the state. 

• The USFWS and others have recognized that NLEB is difficult to accurately 

count via cave surveys, given its preference to hibernate singularly and in 

small groups in recessed areas such as cracks, crevices and broken stalactites. 

As a result, there is a probability that actual NLEB populations in identified 

hibernacula are being under-reported. If so, the NLEB mortality rates at documented die-off events could be over-estimated, perhaps by a significant 

amount. 

• While the USFWS has cited NLEB mortality of as much as 99 percent at 

these hibernaculum die-offs, other research has suggested that NLEB population declines in Pennsylvania and nearby states may be only 31 percent. 

(http://www.nrs.fs.fed.us/pubs/jrnl/2013/nrs_2013_ingersoll_001.pdf) While still 

significant, this rate of decline may not foretell the imminent demise of the 

species. 

• There seems to be a consensus acknowledgment that the NLEB also hibernates in rock outcroppings. Numerous occurrences of NLEB in Pennsylvania 

where rock outcroppings are common suggest that rock outcroppings may be 

a significant undocumented resource for NLEB in Pennsylvania. 

Additionally, we believe that certain characteristics of the ecology of the NLEB 

may suggest greater potential for species survivability than implied by reported 

mortality rates in the proposed listing. In comparison to other bats species impacted 

by WNS, NLEB tends to winter singularly and in small groups, segregated in the 

cracks and crevices of hibernacula (as opposed to other species that cluster in larger 

groups). Compared to the federally listed Indiana Bat, NLEB has been documented 

in significantly more hibernacula (114 vs 18 documented sites). As stated above, it 

is likely that there are significant undocumented populations wintering as individuals and small groups in remote rock outcroppings. Finally, the NLEB seems to congregate in smaller numbers during maternity and summer roosting. All of these 

factors combined would suggest the possibility that the spread of WNS could be 

slower within the NLEB population, compared to other bat species, benefiting the 

survivability. Research on this issue is needed. 

In summary, we recognize the impact that WNS is having on NLEB. We believe, 

however, that there are still significant conflicts and gaps in the research to suggest 

that the species may not be at the brink of extinction. These research gaps need 

to be better addressed before an endangered listing is warranted. 

NLEB Habitat: 

As was emphasized in our previous comments and in the comments of countless 

others, the most significant threat to the NLEB comes from the WNS disease, not 

a lack of habitat. The USFWS recognizes this and has gone as far as to state that 

habitat concerns and other anthropogenic factors create no significant negative effects to NLEB alone or in combination. 

Furthermore, existing research and the wide diversity of habitat within the NLEB 

range suggests that the species is not dependent upon any particular type of forest 

habitat. For its summer roosting needs, NLEB seems to be adaptive to a wide variety of forest age classes, tree species, tree sizes, living and dead trees, as well as 

various man-made structures. NLEB has not been adversely impacted by forest 

habitat changes resulting from forest management activities. 

Because NLEB is such a forest generalist, data recently developed for the 

Pennsylvania Game Commission and Pennsylvania Bureau of Forestry indicates 

that 54 percent of Pennsylvania (15.8 million acres) provides moderate to high potential use habitat for the NLEB in the summer. We suspect that other states in 

the NLEB range also have expansive areas of potential use habitat for the NLEB 

in the summer. 

For this reason, we continue to urge the USFWS to forego the designation of any 

forested areas as critical habitat, as no specific area within its range is critical to 

its future survival, save for hibernacula that are currently free from WNS. 

We are distressed that the USFWS continues to seek to address the decline of 

NLEB by focusing on seasonal restrictions to forest management practices, as expressed in the Interim Guidance issued in January. These restrictions for timber 

harvesting, prescribed burning and other forest management practices throughout 

much of the year will do nothing to prevent the spread of WNS or protect NLEB 

from WNS. Such restrictions will, however, have a negative impact on efforts by 

public and private forest owners to improve the forest habitat for other species, inVerDate Mar 15 2010 11:33 Jun 25, 2015 Jkt 000000 PO 00000 Frm 00066 Fmt 6633 Sfmt 6621 J:\00 FULL COMMITTEE\00SE08 2ND SESS. PRINTING\89831.TXT DARLEN
63 

cluding other listed species and other bat species being negatively impacted by 

WNS. In Pennsylvania, for example, the Game Commission and Bureau of Forestry 

are working on a habitat conservation plan that will benefit the endangered Indiana 

Bat. The forest management restrictions suggested for a NLEB listing may make 

this plan unfeasible. 

Ongoing Bat Conservation Efforts: 

Recognizing the impacts that WNS is having on local bat populations, the Pennsylvania Sustainable Forestry Initiative® is offering a course entitled Bats and 

Forest Management as part of its logger training continuing education program. 

Taught by Pennsylvania Bureau of Forestry wildlife specialists, the course covers 

the importance Pennsylvania bat species, their habitat requirements, WNS, current 

regulations and additional steps that individuals can take to minimize potential impacts on bats during a timber harvest. We estimate that more than 700 harvesters 

and foresters will have an opportunity to take this course as it is offered during the 

upcoming years. 

PFPA also continues to support public and private research efforts to learn more 

about the NLEB and for the control and elimination of the WNS that is the actual 

threat to NLEB and other bat species. 

Potential Economic and Human Impact: 

We recognize that the USFWS will not consider economic or human impacts in 

its determination whether to list NLEB under the Endangered Species Act. However, we feel obligated to provide such information as it relates to Pennsylvania, 

given the scope of forestry in Pennsylvania and the impact that any listing will potentially have on future conservation efforts affecting a broad range of wildlife species and forest health issues. 

Pennsylvania contains nearly 17 million acres of forest. Nearly 30 percent of this 

acreage (4.8 million acres) is publically owned. An estimated 533,000 private owners 

hold over 70 percent of the forested acres (11.7 million acres) in Pennsylvania. Families and individuals are the dominant group in this private category, accounting for 

54 percent (9.6 million acres) of forest in Pennsylvania. 

Pennsylvania is the leading producer of hardwood lumber in the U.S. In 2012, the 

state’s wood industry had $11.5 billion in sales. The total economic impact of wood 

industry amounted to $19 billion contributed to the state’s economy, with total direct, indirect and induced employment of over 98,000 individuals. The state’s forest 

products industry directly employs nearly 60,000 individuals, accounting for more 

than 10 percent of the state’s manufacturing workforce. 

Conclusion: 

• Because of the continued gaps and conflicting data, we request that the 

USFWS not list NLEB as endangered. 

• We request that the USFWS forego the designation of any forested areas as 

critical habitat. 

• We request that the USFWS forego any mandated restrictions on forest management practices. These will not prevent the spread of WNS nor protect the 

NLEB from WNS, but will impede public and private forest landowners from 

effectively implementing other habitat and forest health improvements. 

• We urge the USFWS to work with other federal agencies, state wildlife and 

forestry agencies and other stakeholder to fill the gaps in the existing data 

and understanding of NLEB and WNS. 

• Finally, we urge the USFWS to focus its research and efforts on the control 

and elimination of the WNS that is the actual threat to NLEB and other bat 

species. 

Thank you for the opportunity to comment again on this proposal. We welcome 

any additional conversations on this process and other efforts to address the impact 

of white nose syndrome on NLEB and other bat species. 

Sincerely, 

PAUL LYSKAVA, 

Executive Director, PFPA. 

64 

1These states are AL, AR, FL, GA, IL, IN, KS, KY, LA, ME, MD, MI, MN, MS, MO, MT, 

NH, NY, NC, OH, OK, PA, SC, SD, TN, VA, VT, WV, WI and WY. 2The source for this paragraph, which is based on 2010 economic data, is The Economic 

Impact of Privately Owned Forests in the United States (June 27, 2013) prepared by 

Forests2Market for the National Alliance of Forest Owners and is available at 

www.nafoalliance.org. 

ATTACHMENT 2 

August 29, 2014. 

Docket No. FWS–R5–ES–2011–0024 

Public Comments Processing 

Attn: FWS–R5–ES–2011–0024 

Division of Policy and Directives Management 

U.S. Fish and Wildlife Service 

4401 N. Fairfax Drive, MS 2042–PDM 

Arlington, VA 22203 

Re: Final Determination on the Proposed Endangered Status for the 

Northern Long-Eared Bat, 78 Fed. Reg. 61046 (October 2, 2013) 

To whom it may concern: 

We write to you today to provide comments on the U.S. Fish and Wildlife Service’s 

(USFWS or Service) proposed listing of the northern long-eared bat (NLEB), Final 

Determination on the Proposed Endangered Status for the Northern Long-Eared Bat, 78 Fed. Reg. 61046 (October 2, 2013), and to express significant concerns with the 

Interim Conference and Planning Guidelines issued by the Service in January of 

this year, Northern Long-Eared Bat Interim Conference and Planning Guidance, USFWS Regions 2, 3, 4, 5, & 6 (January 6, 2014). 

We recognize that the Service will not consider economic impacts in its determination whether to list the northern long-eared bat under the ESA. However, as you 

consider management and recovery policies, we believe it would be helpful to understand the breadth of the forest products industry throughout the range of the 

NLEB. While we summarize this in terms of economic impact, we urge you to also 

consider this as evidence of conservation opportunity. Of the 38 states touched by 

the NLEB range, the forest products industry has a significant presence in 29.1

These states contain a total of 80,085,969 acres of public and private timberland. 

The industry provides a total of 2.2 million direct, indirect, and induced jobs with 

a combined payroll of $80 billion. Annual timber sales and manufacturing shipments equaled $210.7 billion, with a combined contribution to the states GDPs of 

$89 billion. Forest-related industries made the largest contributions to their state 

manufacturing (on a percentage basis) in Arkansas, which was the highest in the 

South with 19.90 percent; Pennsylvania, the highest in Appalachia with 9.98 percent; Maine in the Northeast with 23.73 percent; and Wisconsin with 14.04 percent 

in the Midwest.2

As you know, this species is experiencing significant declines in parts of its range 

due to White Nose Syndrome. In the proposed listing, the Service affirms that 

‘‘White-nose syndrome is the most significant threat to the northern long-eared bat, 

and the species would likely not be imperiled were it not for this disease’’ and that 

‘‘habitat concerns and other anthropogenic factors create no significant effects alone 

or in combination.’’ 78 Fed. Reg. at 61072 (emphasis added). Although the Service 

asserts that when combined with the significant population reductions due to WNS, 

‘‘the resulting cumulative effect may further adversely impact the species,’’ id., the 

only true threat to this species is clearly a wildlife disease, not habitat modification 

or loss. 

The fact is, where White Nose Syndrome is not yet present, populations of NLEB 

appear to be quite robust. For instance, the NLEB is one of the most frequently captured bats in mist net surveys on the Black Hills National Forest in South Dakota, 

one of the most heavily managed National Forests in the country. 78 Fed. Reg. at 

61053. Moreover, prior to the introduction of White Nose Syndrome, NLEB’s were 

regarded as ‘‘most common’’ in the Northeastern portion of their range. This vast 

swath of states, ranging from Northern New England through the lower portion of 

the Lake States and Indiana and all the way to parts of the Southeastern U.S., contains a mosaic of habitat types, forest ownerships, and land use practices. This 

strongly suggests that the bat is not dependent on a particular type of habitat, 

much less a particular age class of forest, and has not been adversely affected by 

forest management. 

65 

In spite of the limited role that habitat conditions appear to play in the status 

of the NLEB, the Interim Guidance distributed in January suggests a completely 

unrealistic and unnecessary set of constraints on forest management during nearly 

every seasonal period. These restrictions include vaguely worded restrictions on prescribed burning at various times of year, restrictions on tree harvesting of all trees 

3 inches DBH and larger, and ambiguous direction to ‘‘Avoid reducing the suitability 

of forest patches with known NLEB use.’’ In essence, although the species has been 

shown to be present in forests with a variety of age classes and management regimes and, in fact, may depend upon management to perpetuate various habitat features over time, the Guidance seems to suggest that creating 5-mile radius ‘‘no 

management’’ zones around known hibernacula, and even greater summer habitat 

restrictions, is the best way to conserve bats. There is no evidence to suggest that 

these measures have anything to do with the spread of White Nose Syndrome, nor 

that they would do anything to prevent very high levels of mortality should WNS 

spread throughout the bat’s range, as the Service speculates it will. 

As you know, several State natural resources agencies wrote to the Service on 

April 17, 2014, expressing serious concerns about the NLEB Interim Guidance. They 

noted that ‘‘(a)lthough the USFWS solicited comments on the proposed listing, it did 

not afford our agencies an opportunity to assist in the drafting of the (interim guidance), and has not invited us to participate in the development of the consultation 

guidance.’’ They also ‘‘request an opportunity to provide input on this guidance and 

any other species guidance and avoidance measures before they are finalized.’’ 

The Directors note that the Interim Guidance ‘‘is overly restrictive and too broad 

to be used as consultation guidance.. . . In particular, these measures protect summer habitat at a very high cost . . . If these measures were applied to all forested 

lands, they could impact hundreds of thousands of landowners managing their forests and have a crippling effect on our forest product industries. In addition, they 

would severely limit our ability to manage critical habitats for other species of special concern such as the Kirtland’s Warbler (US Endangered), Karner blue (US 

Endangered), Golden-winged Warbler, and numerous savanna species that are dependent on intensive management.’’ 

We note that such restrictions on harvest, thinning, and prescribed burning could 

significantly complicate forest management efforts to maintain and enhance the 

habitat for other listed species, such as the Red Cockaded Woodpecker in the Southeastern U.S., and could limit your ability to implement needed forest management 

practices such as thinning overstocked conifer stands in the Rocky Mountains and 

regenerating aspen and mixed species stands in the Lake States and Northeast. 

In actuality, thinning overstocked conifer stands aligns with NLEB habitat requirements, and we are alarmed how the Interim Guidance discounted much of the 

science in the proposed listing that discussed summer roosting habitat. The proposed listing discusses the benefits from an active vegetation management program, 

stating: ‘‘Studies have found that female bat roosts are more often located in areas 

with partial harvesting than in random sites, which may be due to trees located in 

more open habitat receiving greater solar radiation and therefore speeding development of young.’’ 78 Fed. Reg. at 61060. The proposed listing also recognized that 

reproducing females generally have shown preference to roost ‘‘in areas of relatively 

less canopy cover and tree density,’’ 78 Fed. Reg. at 61057, and that ‘‘Fewer trees 

surrounding maternity roosts may also benefit juvenile bats that are starting to 

learn to fly,’’ 78 Fed. Reg. at 61055. These statements are supported by cited scientific research but are not reflected in any portion of the Interim Guidance. 

We are extremely concerned that the Service will use the Interim Guidance not 

only as a basis for consultation and Biological Assessments and Biological Opinions 

for current and future forest management projects on Federal lands (including sales 

under contract) but also as the general management scheme for all non-federal 

forested lands within the bat’s range until the critical habitat and recovery plan are 

completed. 

It is absolutely vital that the Service work with other Federal agencies, State 

partners, and other stakeholders to revise and improve the Interim Guidance. Active 

forest management can help conserve the NLEB by creating a variety of stand conditions, ages, and types over time, providing secure habitat through management 

rather than by eliminating management. A reserve approach seems both unnecessary and unlikely to succeed. As members of the forest management and products 

community, we offer assistance to the Service to provide research for the control and 

elimination of the actual threat to the NLEB and other bat species, i.e.—White Nose 

Syndrome. Elimination of the disease is the best strategy to support and protect 

both the bat population and the wood products industry. 

66 

Thank you for the opportunity to comment on this proposed listing. We also support the comments submitted by the National Council for Air and Stream 

Improvement (NCASI), a copy of which is attached. 

Sincerely, 

Alabama Forestry Association Minnesota Forest Industries 

American Forest & Paper Assoc. Minnesota Timber Producers Assoc. 

American Loggers Council Mississippi Forestry Association 

Appalachian Hardwood Manuf., Inc. Missouri Forest Products Association 

Arkansas Forestry Association National Alliance of Forest Owners 

Associated Industries of Vermont National Assoc. of State Foresters 

Black Hills Forest Resource Assoc. National Hardwood Lumber Assoc. 

Empire State Forest Products Assoc. National Wood Flooring Association 

Federal Forest Resource Coalition New Hampshire Timberland Owners 

Assoc. 

Florida Forestry Association North Carolina Forestry Association 

Forest Landowners Association Northeastern Loggers’ Association 

Forest Resources Association Ohio Forestry Association 

Georgia Forestry Association Oklahoma Forestry Association 

Great Lakes Timber Professionals Pennsylvania Forest Products Assoc. 

Hardwood Federation Society of American Foresters 

Hardwood Manufacturers Assoc. South Carolina Forestry Association 

Hardwood Plywood & Veneer Assoc. Southeastern Lumber Manuf. Assoc. 

Illinois Lumber & Materials Dealer 

Assoc. 

Tennessee Forestry Association 

Indiana Hardwood Lumbermen’s 

Association 

Virginia Forest Products Association 

Intermountain Forest Association Virginia Forestry Association 

Kentucky Forest Industries Assoc. Westside Hardwood Lumberman’s 

Club 

Lake States Lumber Association West Virginia Forestry Association 

Louisiana Forestry Association Western Hardwood Federation 

Maine Forest Products Council Wisconsin County Forests Assoc. 

Maple Flooring Manuf. Assoc. Wisconsin Paper Council 

Massachusetts Forest Alliance Wood Component Manuf. Assoc. 

Michigan Forest Products Council 

67 

ATTACHMENT 3 

PENNSYLVANIA FOREST PRODUCTS ASSOCIATION, 

HARRISBURG, PA, 

JANUARY 2, 2014. 

Public Comments Processing 

Attn: FWS–R5–ES–2011–0024 

Division of Policy and Directives Management 

U.S. Fish and Wildlife Service 

4401 N. Fairfax Drive, MS 2042–PDM 

Arlington, VA 22203 

Re: Endangered and Threatened Wildlife and Plants; Listing the Northern LongEared Bat as an Endangered Species—[Docket No. FWS–R5–ES–2011–0024] 

Dear USFWS: 

The Pennsylvania Forest Products Association (PFPA) offers the following comments related to the above referenced proposal to list the northern long-eared bat 

(Myotis septentrionalis) as an endangered species and to not list the eastern smallfooted bas as a threatened or endangered species. 

The Pennsylvania Forest Products Association (PFPA) is the leading trade group 

in the state representing the various sectors of the forest products industry. 

Pennsylvania leads the nation in the production of hardwood lumber. PFPA’s membership accounts for approximately three-quarters of the state’s hardwood lumber 

production and many of the leading pulp and fiber utilizing manufacturing facilities 

in the state. PFPA’s members also own or manage more than one million acres of 

private forest in Pennsylvania. Forest product manufacturing is an important component to the state’s economy, employing an approximately 60,000 Pennsylvanians. 

PFPA is also the administrative host and sponsor of the Pennsylvania Sustainable 

Forestry Initiative® (PA SFI®), which has provided safety, environmental and ecological training to more than 7,000 loggers, foresters and others. It is the leading 

logger training program in the state. PA SFI® regularly includes courses related to 

wildlife, habitat and biodiversity issues as part of its continuing education 

opportunities. 

We offer the following comments on the related proposal: 

Proposed Listing of northern long-eared bat: 

We believe that the information provided in the Status Review of its proposal is 

insufficient to support the listing of the northern long-eared bat at this time. The 

Status Review acknowledges that the information regarding the impact of white 

nose syndrome on the species is limited, with significant data gaps, conflicting information, over-reliance on antidotal information and other data that has not been 

peer-reviewed, and assumptions that may well not accurately reflect what is happening to the species across its range. 

For example, the Service references reports of declines from winter cave surveys 

in Pennsylvania and a limited number of other states. However, this is not confirmed by adequate surveying in during other seasons of the year. This is 

noteworthy, as the Service acknowledges that the northern long-eared bat is easily 

overlooked during hibernacula surveys. It is also noteworthy that recent summer 

mist net surveys and acoustic surveys in several states indicate the northern longeared bat to be among the most common bat detected. 

Given the data gaps and use of anecdotal and non-peer reviewed information, we 

believe that the proposal is not supported by the best scientific and commercial data 

available, as is required by the Endangered Species Act. 

State Regulatory Actions: 

In its Status Review, the Service has wrongly mischaracterized (p. 61068) a pending bill in the Pennsylvania General Assembly (HB 1576) as a proposal to prohibit 

state species listings. This is representation is incorrect, as the bill explicitly does 

continue to allow for state listings and provides a defined process that ensures that 

proposed listings are reviewed to ensure that they are based in sound science and 

open to public comments, as is the required by the Federal Endangered Species Act. 

It should also be noted that this bill has been introduced, but not yet enacted into 

law, not unlike the thousands of other bills introduced in the Pennsylvania General 

Assembly each legislative session—including HB 1099, which would mandate the 

state endangered listing of northern long-eared and other bat species. Given the uncertainly of final enactment, this legislative proposal did not warrant mention in the 

Status Review, let alone it mischaracterization. 

68 

Furthermore, we do not believe that the Service has fully considered to actual 

state efforts which are on-going and under development to both address white nose 

syndrome and conserve the northern long-eared bat, nor have states been given adequate time to do the necessary research to fully develop and initiate their own action plans. The Endangered Species Act allows for federal determinations to be 

made only after taking into consideration all of the efforts of the states and political 

sub-divisions to protect the species. 

Critical Habitat: 

The Service’s proposes to list northern long eared bat as endangered of extinction 

predominately due to the threat of white nose syndrome. The Service has stated 

that the even if all habitat-related stressors were eliminated or minimized, the significant effects of white nose syndrome on the northern long-eared bat would still 

be present. 

There is little definitive research that suggests that specific forest types of forest 

structures are a limiting factor for survival of the species or that restricting forest 

management activities will aid the species in recovery. There is also little evidence 

linking forestry activities to the spread white nose syndrome. 

We urge the Service to forego the designation of any forested areas as critical 

habitat, as no specific area of its range is critical to its future survival. Although 

the Service states that there is much to learn about the interactions between the 

species and its forest needs, there does seem to be a level of consensus that the 

northern long-eared bat is more of a forest generalist able to utilize a wide variety 

of forest conditions. 

The only areas where critical habitat may be warranted are the hibernacula, as 

this is where white nose syndrome seems to have its greatest direct impact on the 

species. 

We also urge the Service to minimize the restrictions on forestry as part of the 

recovery plan. These restrictions will have little if any impact on preservation of the 

species. They will, however, negatively impact thousands of hardworking families 

that depend on forest product jobs for their livelihood. We also believe that unnecessary and unproductive regulation of forestry activities will ultimately discourage forestry practices that may help improve forest habitat to the benefit other species. 

Decision to deferral on listing of eastern small-footed bat: 

We agree that with the Service’s determination that a threatened or engendered 

listing of the eastern small-footed bat is not warranted at this time, given the survey data and information on the species known at this time. 

Response to the information request: 

We offer to the Service the following information: 

• According the U.S. Forest Service, there was a one percent net gain of 

forestland cover in Pennsylvania between 2004 and 2009, with the minimal 

conversions of forest acres to non-forested and agricultural uses off-set by 

other lands reverting to forest. http://www.fs.fed.us/nrs/pubs/rb/rb_nrs82.pdf. 

Prior to that, there was no significant change in the total acreage of 

forestland cover between 1989 and 2004. http://www.nrs.fs.fed.us/pubs/2990. 

• Since 2007, Pennsylvania’s forest products industry has suffered through a 

significant downturn of which it is still struggling to recover. Hardwood lumber production in the state dropped by more than 40% since 2006. These are 

the lowest levels of sawmill production since the Great Depression. http:// 

www.fs.fed.us/nrs/pubs/rb/rb_nrs82.pdf. 

This data is offered as further evidence that the reported demise of the northern 

long-eared bat in Pennsylvania is not due to any scarcity of forest habitat for the 

species. The reported decline of the species has occurred during a period where the 

forest cover in the state has been stable and there has been a historic low level of 

timber harvesting and other forestry activities in the state. 

Conclusion: 

• We request that the Service withdraw or delay the proposed listing of 

northern long-eared bat until gaps in the science and species data have been 

addresses, information peer reviewed and all current efforts to protect the 

species have been fully considered. 

• We also request that the Service forego the designation of any forested areas 

as critical habitat. 

69 

• We agree that with the Service’s determination that a threatened or 

engendered listing of the eastern small-footed bat is not warranted at this 

time. 

Thank you for the opportunity to comment on this proposal. We welcome any additional conversations with the U.S. Fish and Wildlife Service on this process and 

other efforts to address the impact of white nose syndrome on this and other bat 

species. 

Sincerely, 

PAUL LYSKAVA, 

Executive Director, PFPA. 

The CHAIRMAN. Thank you very much. And I do want to thank 

all of you. I allowed several to go over because some of you were 

less, and so I am keeping score up here and I—it works out precisely perfectly. 

Before we go to the question from the Members up here, I have 

13 letters here from Members of Congress, from Governors and 

State Departments of Natural Resources, from the States of 

Pennsylvania, Ohio, West Virginia, North Carolina, Georgia, 

Alabama, Mississippi, Louisiana, Wisconsin, Indiana, Michigan and 

Minnesota, all raising concerns with the Fish and Wildlife Service 

proposal to list the Northern Long-Eared Bat, and I ask unanimous 

consent to be a part of the hearing. Without objection, so ordered. 

Normally, the Chairman has all the power in these committees 

and he gets to start the questioning, however, in deference to my 

hosts here in Pennsylvania, I am going to allow my colleagues from 

Pennsylvania, and then I will follow up, and we may have more 

rounds of questioning rather than just a round of questioning, it 

just depends on the interest here so far. 

So with that, let me recognize Mr. Thompson for 5 minutes for 

questioning. 

Mr. THOMPSON. Well, Mr. Chairman, with unanimous consent, 

we acknowledge you are all-powerful, and I appreciate you 

deferring. 

Once again, good morning, everybody. Thank you for being here, 

thanks for your testimony. 

Ms. Matteson, I want to start with—there seemed to be some 

really conflicting points of testimony, and sometimes, not just your 

testimony, but testimony—even with language within the citizens’ 

petition on this issue, and your testimony, whether it is total, it 

seems like you are projecting there is total consensus on the 

science, and even within the citizens’ petition where it really indicates that there is very, very limited consensus. And one particular 

area I wanted to check in on was under your testimony on protective measures which, you know, if they are effective, they are 

science-based, I think that is wonderful. 

So my question is, in your testimony—written testimony, you 

talked about no regulations or conservation plans currently exist 

that address this issue, and specifically, the Chairman referenced 

the State of Minnesota; Minnesota, Wisconsin, Michigan, Indiana, 

Natural Resources Agencies requested in April 2014 a letter that 

the Fish and Wildlife delay protection, and the objection to the organization was that none of these states have programs to conserve 

70 

and recover. My question is, was your organization supportive of— 

out of Pennsylvania, we have a, was put forward the Habitat Conservation Plan, which just—was just not Pennsylvania, it had to go 

through a complex and extensive process with the Fish and 

Wildlife Service, and it is supported by the U.S. Forest Service, 

National Park Service, and then Pennsylvania Forest Products and 

various aspects of the industry, so it really had some very strong 

Federal Government endorsement. Is that what was missing from 

Minnesota, so is your organization on record then of supporting the 

Habitat Conservation Plan that was put forward by the Commonwealth of Pennsylvania with those other strong partners, including 

the U.S. Forest Service and, I apologize, and the National Park 

Service? 

Ms. MATTESON. Excuse me, Representative Thompson, which 

Habitat Conservation Plan are you referring to? Was this for the 

Northern Long-Eared Bat? 

Mr. THOMPSON. Yes—well, actually, it was originally put forward 

for the Indiana Bats, to accommodate current and future forest 

management activities on state lands. 

Ms. MATTESON. I think—if I understand your question correctly, 

you are asking me if the Center for Biological Diversity is in support of habitat conservation plans? 

Mr. THOMPSON. Correct. 

Ms. MATTESON. We certainly are, yes. 

Mr. THOMPSON. Well, then it is entered in your testimony though 

you—shortly after this was submitted—by the way, included, actually, the National Guard as well because of our training center in 

this area. Shortly afterwards, your organization, along with several 

other national environmental groups, sent a letter to the Federal 

Fish and Wildlife Service urging denial of the ACP. 

Ms. MATTESON. OK, now I—— 

Mr. THOMPSON. And so—— 

Ms. MATTESON. I—yes, now I understand which ACP you are 

talking about. 

We support habitat conservation plans. We were arguing with 

the content of that plan, not the idea of a plan. 

Mr. THOMPSON. OK. One of the—you know, in your testimony, 

you talk about publicly available data, you talk about how some opponents from the Endangered Species Act have asserted that recent summer bat surveys, like hibernacula surveys indicate the 

Northern Long-Eared Bat is still abundant, however, publicly 

available data such as studies and surveys cited above paint a clear 

picture of ongoing and dramatic decline of the species. So I assume, 

obviously, your organization is very supportive of transparency in 

terms of publicly available data? 

Ms. MATTESON. I am supportive of transparency, yes. 

Mr. THOMPSON. Yes. Is your organization supportive of the measure that we recently passed out of the House of Representatives, 

which basically was all about transparency, it would just require 

the Fish and Wildlife Service to make public the science and the 

data that it uses for making determinations of listing? I think we 

passed it out of the House—— 

VOICE. Bipartisan. 

71 

Mr. THOMPSON. It—with bipartisan support within the past 

month, I believe. 

Ms. MATTESON. Well, I am not personally familiar with that 

legislation, but we are certainly supportive of data being—— 

Mr. THOMPSON. Transparency. 

Ms. MATTESON [continuing]. Data transparency, yes. 

Mr. THOMPSON. OK, so—as am I. Thank you. 

Representative Pyle, it is great to see you again. 

Mr. PYLE. Good to see you again. 

Mr. THOMPSON. Can you discuss what listing by either both the 

state or the U.S. Fish and Wildlife would mean for Pennsylvania 

from a regulatory standpoint? In other words, should the Northern 

Long-Eared Bat be listed by the state or Federal Government, and 

what kind of burden and regulatory responsibility would this put 

on the State of Pennsylvania? 

Mr. PYLE. It would be profound, Congressman. As you can see, 

its range pretty much goes from coast-to-coast, top to bottom. 

I can tell you from personal experience what is going to happen 

if this goes down. What they are going to do is they are going to 

go up and they are going to tell you this is where the bat is. In 

our case, the Pennsylvania Game Commission of Pennsylvania, 

Fish and Boat Commission, oversee the Endangered Species Act. 

What the gentlemen probably don’t realize is in addition to your 

endangered species list, we have one of our own also. 

I can give you an opinion, Congressman, and say anybody who 

wants to walk on my family land and tell us what we can do with 

it after 200 years of treating it well and raising scores of dairy cow 

that fed the whole place, I can tell you that should one of these 

people show up and tell us what they are going to do with our land, 

it is going to be met with opposition. 

Now, on an official level, we in Pennsylvania in the 

Commonwealth have similar difficulties that you on the Federal 

level are having, only you just brought up something that I think 

is a great idea here. I recently tried to run an Endangered Species 

Coordination Act. I was met with such a wall of grief. Now, what 

their main oppositions are going to be were exactly what you just 

identified; transparency. One of the parts of our bill that was not 

run was that if there is a developer willing to come into an area, 

either to log timber, mine coal, or build a cul-de-sac or a shopping 

mall, one of the parts of our bill we felt was fair was the caveat 

emptor clause, where, before somebody has to put down large sums 

of money to buy the property to develop whatever they want, they 

would go to our Fish and Game or—you know, Commissions and 

ask, do you have any hits on endangered species on this property. 

Absolute objection, dig your heels in and fight. Which tells me what 

they want to do is they want you to put the money up first so they 

can come in later and say, surprise. 

Now, how can I back that up? I can give you examples from 

Clarion County where a family had a couple hundred acres and 

they wanted their boy to build on it, and the kid went off to school 

in California, made all kinds of money, came back, Dad wanted to 

carve off half the land, and one day the guy walks out and there 

is a guy walking up and down through Redbank Creek on his property. And the guy said, who are you, and the guy said, I am from 

72 

Fish and Wildlife and you have a Massasauga snake habitat. And 

the guy said, we have never had snakes here, where is it. And he 

took him down to the stream and he showed him a bunch of piledup rocks, and he said, that is perfect. And the guy said, what does 

that mean to me, and he said, well, $30,000 for offset acreage and 

we will let you build on land your family has owned for 100 years. 

Are you serious? You know what I mean. 

Especially in the northern tier, Pennsylvania’s hardwood industry is huge. If you cut down our ability to feed our kids, you are 

essentially exercising a de facto eminent domain on us. 

The CHAIRMAN. Representative Pyle, we have others, I—— 

Mr. THOMPSON. Thank you, Chairman. 

The CHAIRMAN. Mr. Perry is recognized. 

Mr. PERRY. Thank you, Mr. Chairman. I will turn to Mr. Pyle. 

It is my understanding and recollection that you used to be an 

educator, is that correct? You taught in the school system in 

Pennsylvania? 

Mr. PYLE. Fourteen years in the public high schools. 

Mr. PERRY. Did you teach anything other than the facts? 

Mr. PYLE. No. 

Mr. PERRY. So if I tell you the Federal Government has currently 

listed 1,553 domestic species as threatened or endangered, and over 

40 years recent analysis has determined that about 33 species have 

ever been deemed recovered and removed from the list, in regard 

to Ms. Matteson’s testimony that says that the ESA is 99 percent 

effective because it saves endangered species. Now, I know that is 

quick math for you, Representative Pyle, is this 99 percent effective 

statement true based on what I just told you, the 1,553 versus the 

33 species over 40 years? 

Mr. PYLE. I would say statistical analysis would not bear-up the 

assertion, sir. 

We have, however, in my county, had great success with new 

breeding pairs of Bald Eagles, and we are pretty happy about that. 

Mr. PERRY. So as you know, the Endangered Species Act is—as 

it is currently written, requires the best scientific and commercial 

data available, and I quote, ‘‘best scientific and commercial data 

available.’’ The FWS proposed ruling calling for the endangered 

listing of the Long-Eared Bat refers to unpublished reports 87 

times, and refers to some studies that were written in 1940 and 

1969. With all due respect, Ms. Matteson, in her written testimony, 

claims that this is the best available science and listing—and that 

the listing should occur based on that. Eighty-seven times unpublished reports, and studies written in 1940 and 1969, just based on 

that, do you agree with her finding? 

Mr. PYLE. No, I do not, Congressman. It is—you can repeat a lie 

over and over and over, and thousands of people rank upon row 

can repeat it, but that is not going to make it true. 

Mr. PERRY. Thank you. 

Ms. Matteson, your disclosure mentions that the Center for 

Biological Diversity files on average about 42 lawsuits a year. 

When your organization receives taxpayer financed attorney fees 

from those lawsuits from the Federal Government from some of 

these lawsuits, how much does your organization invest into habitat for existing endangered species? How much do you turn back 

73 

into habitat—saving the habitat or safeguarding the environment 

of those funds? 

Ms. MATTESON. Well, first of all, the amount of money that we 

receive from litigation is a very small percentage of our budget. It 

is, on average, less than 5 percent—— 

Mr. PERRY. But it is—— 

Ms. MATTESON [continuing]. A year. 

Mr. PERRY [continuing]. Up to $600 an hour, which goes way 

above the limit for Federal attorney fees as I understand it. Is that 

correct? 

Ms. MATTESON. I am not an attorney, I am a biologist, so—— 

Mr. PERRY. OK. 

Ms. MATTESON [continuing]. I am not familiar with that. 

Mr. PERRY. Fair enough. All right, so it is a small percentage, 

but how much is reinvested into habitat reclamation or protection? 

Ms. MATTESON. So we are a group that focuses primarily on advocacy for endangered species. 

Mr. PERRY. Do you know? Is there an answer? I mean I—— 

Ms. MATTESON. We—— 

Mr. PERRY [continuing]. If you don’t, it is OK—— 

Ms. MATTESON. We—— 

Mr. PERRY [continuing]. I just—— 

Ms. MATTESON. We do some conservation land work in the 

Southwest, but primarily we are an advocacy organization. 

Mr. PERRY. All right. If you could at some point, we would love 

to get that figure, how much your organization uses for—to invest 

in habitat for endangered species. 

Moving on, can you name the timber sales on Federal land that 

your organization has supported? Which ones? 

Ms. MATTESON. I cannot answer that question. 

Mr. PERRY. Do you know if there are any? 

Ms. MATTESON. I am not familiar with the answer to that 

question. 

Mr. PERRY. OK. It is my understanding that there aren’t any, 

and it just leads us to believe, with all due respect, that the organization is opposed to any timbering whatsoever. And while we depend on the things that we are sitting behind, I hate to mention 

it but toilet paper is really important to a lot of people, it is an important industry and we would hope that there would be a balance 

from your organization as well as from the Federal Government. 

To Mr. Brubaker, you indicated that barns and silos could be impacted by the Federal bat designation. What would happen if you 

were a homeowner who had a bat lodged in a wall or a fireplace, 

or if a bat got into your house, could you be liable and subject to 

fines under Federal law if you harmed this bat, based on your understanding of this—— 

Mr. BRUBAKER. Based on my understanding, I would say that we 

could be, and I have had the experience too of needing to rid a bat 

from my bedroom. And in that particular case, there is no discretionary decision; the bat will go. 

Mr. PERRY. So you would be in violation of the Federal statute, 

the Federal rule if you tried to clear the bat from your kitchen, 

your bedroom, your living room—— 

Mr. BRUBAKER. That is—— 

74 

Mr. PERRY [continuing]. You would be—— 

Mr. BRUBAKER. That is my understanding. 

Mr. PERRY [continuing]. In violation? 

Mr. BRUBAKER. That is my understanding. 

Mr. PERRY. That is great. 

All right, Mr. Chairman, I yield. 

The CHAIRMAN. Thank both of you for your statements. 

I just want to make kind of a big picture observation, and I do 

have a question for Mr. Lyskava, but the Endangered Species Act 

has been around since 1973, and there have been, as Mr. Perry 

pointed out, 1,553 listings and 33 species recovered. Now, I am 

sure people here in Pennsylvania, with two Major League baseball 

teams, are all baseball fans. Let me just ask a rhetorical question 

here. You don’t have to answer, but if you are 33 for 1,553, would 

you even qualify for T-ball at that batting average? I mean, but 

that is what we are dealing with. 

Now, here is the—what I think is a huge, huge issue with this 

mega listing; 1,553 listings in 40 years. This mega settlement could 

be more than 750, or roughly 50 percent more, in the next 2 years, 

and the mere fact that the testimony and all of you have heard, 

I have certainly heard over and over and over, is the simple fact 

that the data is questionable. If the data on the Long-Eared Bat 

is 40 years old at best, and even the petitioner says that you can’t 

draw conclusions, does that give you any confidence that the 750 

potential listings of the mega settlement will be any better, or 

probably worse? And that is what the issue facing the committee 

is. And by the way, going back to Mr. Thompson’s question to Mrs. 

Matteson, for the record, the Center for Biological Diversity opposed the legislation to have transparency in listings or de-listings. 

They opposed that legislation that passed on a bipartisan basis. 

Mr. Lyskava, I want to follow up, since you are in the timber industry and I alluded to in my opening statement the Spotted Owl 

in the Northwest, and the fact that timber harvests have declined 

by some 80 percent. On Federal land, by the way, it is 90 percent 

in where it is listed. And the issue of the Spotted Owl was the lack 

of old growth timber, and that is supposedly why that was listed. 

We have now discovered, however, that it is not the lack of old 

growth, but rather a predator called the Barn Owl. It is a little bit 

larger than the Spotted Owl. Big guys beat up on little guys, that 

is in human nature, I guess, forever. By the way, I should say, Fish 

and Wildlife’s response to that is to shoot the Barn Owl, by the 

way. That is the response. This just happened. 

Now, Mr. Lyskava, I want to ask you a question. Do you see any 

similarities with what has happened in the Northwest with the 

Spotted Owl that could happen if the Long-Eared Bat is listed here 

in Pennsylvania? 

Mr. LYSKAVA. Mr. Chairman, the proposed listing for the 

Northern Long-Eared Bat is our Spotted Owl moment. It is our 

Spotted Owl moment for Pennsylvania, for the other Appalachian 

states, for the states in the northern part of the range, and the 

other areas within the range of the Northern Long-Eared Bat. And 

I would agree with you, sir, that the economic impact is going to 

be severe, and those aren’t faceless jobs, those are tens of thousands of families that are going to be impacted, whose family strucVerDate Mar 15 2010 11:33 Jun 25, 2015 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6602 J:\00 FULL COMMITTEE\00SE08 2ND SESS. PRINTING\89831.TXT DARLEN
75 

ture is going to be severely stressed when they lose those jobs. 

Those rural communities that depend upon forest products are 

going to be severely impacted. And as you had stated previously 

also, the benefits of forestry activities which would take place; 

forest health activities, we don’t—in the eastern United States, we 

do not have the problems with fire that you do in the West, but 

we do have a lot of forest health issues out there as it relates to 

Gypsy Moth, Hemlock wooly adelgid, Emerald Ash Borer, and dealing with those issues, both on private forest land and public forest 

land, we will be precluded from doing that. And, ironically, both 

private and public forest landowners will be precluded from initiating the forestry activities which help a wide variety of other species, whether they be a listed species such as the Indiana Bat, in 

which the—as was previously mentioned, the Pennsylvania 

Department of Conservation and Natural Resources, and the 

Pennsylvania Game Commission, are looking at submitting a habitat conservation plan to help improve the habitat for Indiana Bat, 

or the wide variety of other species that are out there that the citizens of the Commonwealth and citizens of the United States would 

like to have around, and it is all going to be severely impacted 

without this listing, again, without—because we are talking about 

disease, sir, all this listing and all those negative impacts will provide no positive affect upon the survival of the Northern LongEared Bat. 

The CHAIRMAN. OK, my time has expired. 

We will start a second round, and I will recognize Mr. Thompson. 

Mr. THOMPSON. Thank you, Chairman. 

Mr. Biggica, in your testimony you talked about projected impact, 

I think the number was 650 rural electric co-ops or around within 

that region, that green area, that was new information to me, but 

it makes sense. You talked about the conflict in compliance, basically, caught—basically, double jeopardy that rural utilities faced 

with regard to tree removal versus potential ESA restrictions, because there are regulations on both, and I wanted to see if you 

could expand on that a little bit. In your experience, does the ESA 

provide the flexibility to account for common sense, but also to be 

able to mitigate its way through conflicting regulations that are imposed upon the industry? 

Mr. BIGGICA. Congressman Thompson, this is our catch-22. 

Where do we go? We have two agencies asking two different things 

from us. It attacks us a little differently in Pennsylvania with the 

rest of our cousins throughout the rural areas, both on the transmission side and on the distribution side. And NERC has a zero 

tolerance when it comes to tree trimming and vegetation management. Even beyond our right-of-ways, NERC has asked G&Ts, generation transmission cooperatives, that not only are responsible for 

our right-of-way, which is usually for a transmission line about 200 

feet, even beyond the right-of-way, if there is any threat to dead 

trees or imposing trees on those lines. We have faced tremendous 

problems with right-of-way clearing. In the State of Pennsylvania, 

as you know, about a year-and-a-half ago, we had the tremendous 

ice storm that affected your cooperative, Congressman, down in 

Adams. We had some people who were out for almost a week. 

Luckily for the cooperatives, our reliability was better than the 

76 

other utilities around. They were out for 3–4 weeks. Clearing, vegetation management, right-of-way trimming is a direct correlation 

with reliability, and that is of utmost importance. 

Our people are very reasonable people, but when you are out for 

a week because a tree is lying across the power line, they become 

very unreasonable. And we have found that the correlation between 

trimming, vegetation management is so important to the stature of 

the cooperative and the commitment to its consumers. 

Mr. THOMPSON. Thank you. 

Mr. Stilley, your testimony mentioned permitting delays. Should 

the Northern Long-Eared Bat be listed, what kinds of impacts 

might delays have on permitting and ultimately on your business? 

Mr. STILLEY. It creates a huge problem for us. You know, in the 

coal industry in particular, we have been mining coal in 

Pennsylvania for the last 150 years. As I mentioned in my testimony, anywhere between one-third and one-half of the sites that 

we move on to mine coal today have been previously either surface 

mined or deep mined in years past. So, in effect, the permits that 

we need to secure to maintain our level of operation are our lifeblood. Our jobs last anywhere from 3 months to 2 years, and we 

are moving from site to site as often as 9 months to a year apart. 

The impact of the Endangered Species Act, and requirements 

under the permitting requirements, extend the review time by the 

DEP, who are working under privacy with OSM, by as much as 

anywhere from a year to a year-and-a-half. So in effect, if we don’t 

have a permit issued, our guys stay home, our equipment stays 

parked. We have contractual arrangements to ship coal to various 

utility companies in Pennsylvania, and industrial customers up in 

New York State. If we can’t get the permits to maintain our consistent production of coal, we are then in violation of those contractual obligations. And the way the coal industry is today, with the 

number of plant closings that have taken place under the Obama 

administration, you can ill afford to miss any potential to be able 

to ship coal because chances are, a year from now, those opportunities are going to disappear. We have to be able to get permits on 

a timely basis, and this is just another impact that precludes us 

from not being able to get that done. 

Mr. THOMPSON. Thank you. 

Mr. D’Amico, talking about permits, you had mentioned in your 

testimony that PIOGA and eight other companies requested an 

emergency petition to Fish and Wildlife in February 2014, 

7 months ago. Still no response back from that office? 

Mr. D’AMICO. No, sir. 

Mr. THOMPSON. Yes. What else can you say, except I yield back. 

The CHAIRMAN. Mr. Perry. 

Mr. PERRY. Thanks, Chairman. 

Mr. Biggica, you are a co-op, right, or you represent co-ops, so 

just explain to everybody that—the customers are owners, right? 

Customers—your customers are—they own—— 

Mr. BIGGICA. Are the owners. 

Mr. PERRY [continuing]. The electricity company—— 

Mr. BIGGICA. Yes. 

Mr. PERRY [continuing]. Power company. So how would a listing 

of the Northern Long-Eared Bat complicate your ability to provide 

77 

electricity and transmission to parts of the state, and can you 

elaborate based on a direct and indirect cost about that? 

Mr. BIGGICA. Well, the costs are hard to substantiate right now, 

but we can tell you that most importantly there is a direct correlation. It is probably the most labor intensive and financial intensive 

project that we do as cooperatives. There is nothing more important than clearing right-of-way. There is nothing more devastating 

than downed power lines. As I said with NERC, they have a zero 

tolerance when it comes to transmission lines. On the other side, 

on the distribution side which we are most in Pennsylvania familiar with, we only have about 11 miles of transmission lines. We are 

working with the PUC with jurisdictional utilities, as you know, we 

are owned and operated by cooperatives, so we are nonjurisdictional, but because of the devastation that we have experienced in Pennsylvania with the hurricanes and the ice storm, the 

PUC, rightfully so, is also taking a zero tolerance toward it, but 

when it comes to cost, it is the most expensive aspect of a cooperative operation and that is to clear the lines. We usually do—we do 

it all the time on emergency bases, but we have cycles; either 3, 

4 or 5 years. Five years is kind of pushing the cycle. 

Mr. PERRY. So let me ask you this, who pays for that? 

Mr. BIGGICA. Well, our cooperative owners, the members. 

Mr. PERRY. Who are your owners? 

Mr. BIGGICA. Our owners are the people who receive the 

electricity from us. 

Mr. PERRY. It is your customers, right? 

Mr. BIGGICA. That is exactly right. 

Mr. PERRY. And they are going to be paying the bill for this 

based on inexact science, I think you would—— 

Mr. BIGGICA. Exactly right. 

Mr. PERRY [continuing]. Conclude. 

Ms. Matteson, the Endangered Species Act as it is currently written requires, again, and I want to use this quote, ‘‘the best 

scientific and commercial data available.’’ In your experience, if 

data isn’t available, often unpublished studies or opinions are used. 

I mean I read that in your own testimony. In your view, is that 

the best? Is that the best? 

Ms. MATTESON. It is the best available at the time. In—— 

Mr. PERRY. It doesn’t say at the time, it says the best scientific 

and commercial data available. It doesn’t say at the time, it says 

available. 

Ms. MATTESON. If we continue to wait on endangered species, 

they will go extinct. 

Mr. PERRY. If we continue to wait on—— 

Ms. MATTESON. But we need to—— 

Mr. PERRY. Even if the data is—— 

Ms. MATTESON. We need to protect—— 

Mr. PERRY [continuing]. One hundred percent flawed—you would 

say even if the data is 100 percent flawed, White Nose Syndrome 

is causing it, it has nothing to do with habitat, human activity, we 

must move forward anyhow. Would that be your assertion then 

based on that? 

Ms. MATTESON. The law says to use the best scientific and 

commercial data available, and that is what is in this decision—— 

78 

Mr. PERRY. So you are saying this data that is from 1969 and 

1940, that is the best available? 

Ms. MATTESON. I don’t know the context of how that particular 

reference was used. It may have been historical—— 

Mr. PERRY. OK. 

Ms. MATTESON [continuing]. But most of the information, most of 

the reference that went into the proposed rule is much more current than that. And sometimes publication takes a long time, so 

you have to go with what is currently available. 

Mr. PERRY. I would say we all want to save these endangered 

species, and as a person—marvel at bats, they eat a lot of insects 

and we want them around, and live in our barns and in our fields 

and forests and so on, we want them around, but we want to make 

sure we are making the proper—taking the proper discretion regarding impacting people and animals’ lives from a Federal law 

standpoint. If we have insufficient, incorrect, outdated data, it 

seems to me that that is not the best scientific or commercial data 

available. 

While I complete here, Mr. Stilley, you are in the mining business, heavily, heavily regulated. Rightly so, right, based on safety, 

et cetera. If I said to you, you must use the best scientific and commercial data available regarding your safety program, and you 

gave me something decades old and said, well, this is what I’ve got, 

do you think that that would fly in the face of the regulators that 

you deal with? Do you think that they would accept that and let 

you continue to operate based on what we knew 20, 30, 5 years 

ago, as opposed to today? Just curious, because we live by the same 

set of rules, right? We should. Your comments. 

Mr. STILLEY. MSHA is our current regulator for the mining industry, Mine Safety and Health Administration. They are revamping their regulations and policies on a daily basis. To think that we 

would be living under regulations as posed and required of us 30 

years ago and try to do that with MSHA, we—first of all, it is not 

the right thing to do, and second, we would be shut down today. 

We must, for the sake of our employees and the guys working in 

the mines, make sure that it is as safe and sound a place as staying at home. And that requires up-to-date, current information at 

this instant in time, pure and simple. 

The CHAIRMAN. Thank you very much, Mr. Perry. 

Mr.—I want to kind of follow up on this. Mr. D’Amico, in your 

testimony, you said that the proposed listing is not based, this is 

the line of questioning Mr. Perry had here, is not based on the best 

scientific and commercial data that is available, and I tend to agree 

with you. Yet, on the listing by the Center for Biological Diversity, 

on page 11, they state, and this is a direct quote from that petition, 

‘‘little is known about population trends for the Northern LongEared Bat.’’ Now, that is in their petition listing. They further go 

on to say that because that small amount of population data, they 

say this, and I quote, ‘‘make—to make any conclusion, provisional 

at best.’’ 

So this is what Fish and Wildlife got from the petitioner, and yet 

Fish and Wildlife went ahead with this listing. Your comments on 

that process. 

79 

Mr. D’AMICO. I think there is an overall concern here, and you 

made reference to it in your initial comments, and as the process 

of the mega settlement. When the Center proposed several hundred 

species at one time, you have a Federal agency, the Fish and 

Wildlife Service, that now all of a sudden has a—basically an insurmountable effort to do, because they have to review this, make 

a determination in one year’s time or they are going to be in court 

back with the Center or some other environmental group trying to 

do it. So from their standpoint, if I put myself in the Fish and 

Wildlife’s shoes, they are afraid to make the wrong decision, and 

from their standpoint, as protectors of wildlife, they are going to 

err on the side of, well, you know, let’s regulate everything to 

death. The problem with that concept is the overall damage that 

it does to the entire country, whether it is my industry, and actually it is kind of, you know, somewhat of a relief hearing all the 

impacts that are happening to everybody else, because there are 

times we have to focus on our industry and, oh, my God, these people are just trying to put us out of business, for the Northern LongEared Bats with our industry here in the East or the Prairie 

Chicken in the West, you know, we are hearing the same kinds of 

things. 

But the bottom line is, at some point we need to have things and 

protections that don’t shut down the entire economy, don’t shut 

down farming so we can’t feed our people, doesn’t shut down the 

natural gas industry so that we can’t keep people warm, it doesn’t 

shut down the coal industry so that electricity can be generated, 

and, frankly, Russ, you know, from your standpoint, if we can’t 

produce the energy to make the electricity, you don’t have anything 

to worry about because it is not going to affect you. We won’t have 

any electricity. But this is the problem; I think there is absolutely 

no common sense, sir, in these regulatory agencies, and how these 

rules are being conducted. And, unfortunately, something that you 

all are very well aware of, there is such a partisanship in the U.S. 

Congress that it makes it difficult for even you folks to impact this 

because you have another—that is going to come up with an entirely different opinion. Pardon me speaking with my hands, I am 

Italian. But, that is the basic issue here, and to base something 

without scientific basis is just—it is why I referred to it as a fiasco. 

The CHAIRMAN. Well, I, of course, agree with that, and I mentioned earlier I come from the Northwest, and prior to this mega 

listing, while there are instances around the country, most of the 

big economic impact because of listings was in the western part of 

the United States. There are documented cases all over of the 

school district in Southern California that went through as bad as 

you went through, Representative Pyle. But in addition to the 

Spotted Owl, we have the salmon issue in the Northwest. We spent 

billions, and that is with a B, billions of dollars. Ratepayer dollars 

transferred because the utilities are paying for this, plus taxpayers. 

And I might add, just for the record, the salmon return coming 

back in the Columbia River are larger now the last 4 or 5 years 

than they have since we have been keeping records in 1938. There 

has been nary a—anybody speaking about de-listing the fish yet, 

so billions are still going to be spent. And the reason that I have 

had such an interest in this and was so happy to come to 

80 

Pennsylvania, and earlier down in Arkansas, is because now, because of this mega listing, the rest of the country is going to be— 

could be potentially as impacted as we are. Now, when I started 

talking to my colleagues earlier and they said, are you going to do 

anything on the Endangered Species Act, I say why and then they 

tell me, and like listings like this. And my response to them is I 

don’t take pleasure in this, but welcome to the club. Why welcome 

to the club? Because the only way you are going to change is when 

you have the political will to do so. Now, my colleagues here and 

in Arkansas, and all of the Governors of the states I listed are 

going to tell their people get some common sense into the 

Endangered Species Act. 

So my time is way over. Do any of my colleagues want to make 

any more questions or—if not, I will yield to you for your closing 

statement. 

Mr. THOMPSON. OK, Chairman, thank you very much. I would be 

remiss if I didn’t say a special hello to one of the witnesses who 

are my constituents here today, the gentleman from Centre Hall, 

thanks for being here, Mr. Melville. We greatly appreciate it. 

I want to thank someone else that helped really secure this facility, Senator Gene Yaw, who has been a good friend, a good public 

servant of Pennsylvania, he went out of his way to make arrangements to allow us to be able to have that here today. We are very 

much appreciative to the Pennsylvania Senate and the Legislature. 

Chairman, thank you for having this hearing, Mr. Perry, for 

being a part of it. Thanks to the witnesses for being here and for 

all those who took time this morning to attend. 

You know, the Endangered Species Act is important, and, quite 

frankly, I care about the National Long-Eared—Northern LongEared Bat. Well, it is almost national, I guess. That green area, 

pretty much could claim it. I am glad it wasn’t—I would soon much 

have the eagle as our flying symbol versus the bat, but it does 

cover a lot of area. 

You know, this species and any others deserve an Endangered 

Species Act that is effective, that is transparent, that is scienceand data-based, that avoids unwarranted, unneeded, negative consequences. That is not what we have today with the Endangered 

Species Act. You know, these species deserve better. You know, 

there is a requirement to use best available science. I have to tell 

you that because of the lack of transparency by the Fish and 

Wildlife Service, I have no idea whether our Fish and Wildlife 

Service is in compliance with the law. I don’t know, and we should 

be able to know and make those—as the lawmaking body in this 

country, we should be able to offer that judgment, whether these 

Federal agencies are working according to the Federal law, and the 

complete lack of transparency alarms me because I don’t know. I 

couldn’t assure you or my constituents, or the citizens of the 

Nation, that we are—that they are following the laws. The 

Endangered Species Act, you know, must be science- and datadirected, not the result of a closed-door settlement, and that is 

where we are at today. And I really appreciate the leadership of 

the Chairman and the Natural Resource Committee, and I look forward to continuing this work as we have a lot of work to do left 

in the 113th Congress, so thank you and I yield back. 

81 

The CHAIRMAN. Thank you. 

Mr. Perry? 

Mr. PERRY. Mr. Chairman, Doc, thanks for coming to Harrisburg. 

Thanks very much for allowing me to participate. To you folks, 

thanks for your attendance here today. We are looking for solutions, and I would agree with Ms. Matteson, especially for the bat 

who is the—the time is very urgent, I am concerned about a 

Federal Government and an Agency that spends much of its resources defending lawsuits, and where those resources could be 

used in combating this White Nose Syndrome, and actually getting 

to the facts so that we can find a solution to save the bat, at the 

same time, continue to live our lives and employ people and live 

well in doing so in harmony and in concert with the species around 

us. The Endangered Species Act is vitally important in that regard, 

and we must do everything we can to safeguard it, but also to 

make sure it is effective, and I fear at this point over its time it 

is being used to fulfill the agendas of some folks that can’t fulfill 

an agenda through the other means, and that is the problem, because we all want to preserve these species, at the same time preserve our way of life. And so I think that is what this hearing is 

about, to get to the facts, and I hope that it helps us as legislators 

become more educated on not only the bat itself, but the process 

by which we save all our species in the United States, and so we 

can be more effective at doing so, and I appreciate your indulgence 

and your willingness to stand for the tough questions. 

Thank you, Doc. 

The CHAIRMAN. Thank you very much, and I want to thank my 

colleagues for talking to me about having this hearing here some 

time ago, and I am glad we finally made it come to an end. 

I just want to make a couple of statements. And I want to thank 

the panel for your testimony. Many times when we have panels, 

there are follow-up questions. If you get a question from us, we 

would ask you to respond in a very timely manner. And in that regard, Mr. D’Amico, you said in a larger sense that, politically, there 

is a challenge in Washington, DC. Listen, I think anybody, no matter where they live in this great country that we have the privilege 

to live in, would acknowledge that the country is somewhat divided 

politically. OK, that is the price of self-government. As difficult as 

it is, that is the price of self-government. And that reflection is 

going to be reflected in the peoples’ house that we have the privilege to serve in, in the peoples’ house. But we have to work our 

way through it. And, yes, there are politics in a lot that we do, 

there is absolutely no question about that, and sometimes it doesn’t 

help when the rhetoric on both sides gets rather heated. Now, I 

was asking you about the science. There has been a lot of discussion on the science here, and, Ms. Matteson, you said that the best 

available science goes back over 40 years, and yet in your press 

statement, you said because the science is clear. Now, does that 

help the discussion, for goodness sake, when you say here in 

Committee that is the best available science, acknowledging it is 

over 40 years old, and yet say in a press statement about this 

meeting that the science is clear? That doesn’t help trying to find 

solutions to what we are trying to find. 

82 

And let me go one step further. Mr. Perry asked you if the CBD 

had been involved in any restoration or whatever, you didn’t know 

because you said you are a scientist, but you do work for them, so 

I am not—well, I won’t ask you if you know or not, I am asking 

you to find out and tell us, send to the committee what CBD has 

done as far as restoration. You said specifically in the Southwest. 

I want to know exactly what you are doing there. The committee 

wants to know that. And so you get that information to us, and I 

will ask a further question. We heard virtually all of the panelists 

here talk about the White Nose Syndrome. Virtually all of them. 

I want to know if CBD is doing any research on trying to eradicate 

that. So I am asking you to give us that information, not that we 

would like to have it, I want to know because you work for CBD, 

get it to us. 

And so if there are any further questions to any of you, that 

would be the same tone we would ask you; get the information to 

us. 

Once again, I want to thank the panelists for being here. And for 

those of you in the audience, if you would like to comment, you can 

go to our Web site, or there are sheets back here that you can add. 

I think we will have—generally, we have 10 days after these hearings to get comments in place. 

So if there is no further business to come before the committee, 

the committee stands adjourned. 

[Whereupon, at 11:52 a.m., the committee was adjourned.] 

[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

JUNIATA VALLEY AUDUBON, 

TYRONE, PA 16686 

Hon. GLENN THOMPSON, 

U.S. House of Representatives, 

Washington, DC. 

DEAR CONGRESSMAN THOMPSON: 

Juniata Valley Audubon, a regional conservation organization with more 

than 500 members in south-central Pennsylvania, strongly supports the 

proposal to list the northern long-eared bat as endangered under the 

Endangered Species Act. 

White-nose syndrome has killed an estimated 5.5 million cave-hibernating bats in 

the Northeast, Southeast, Midwest and Canada. Populations of the northern 

long-eared bat in the Northeast have declined by 99 percent since symptoms of white-nose syndrome were first observed in 2006. 

Before the emergence of white-nose syndrome, the northern long-eared bat was 

found in 39 states, including the District of Columbia, with higher abundance in the 

East and becoming increasingly rare moving west. Other threats to the species include wind energy development, habitat destruction or disturbance to hibernating 

and summer habitat, climate change, and contaminants. 

Under the Endangered Species Act, an endangered plant or animal is one 

that is in danger of becoming extinct. This is certainly the case with the 

northern long-eared bat. If a final decision is made to list the northern longeared bat, the species will be protected from take—harming, harassing, killing—and 

federal agencies will work to conserve the bat and its habitat as they fund, authorize or carry out activities. In addition, a recovery plan should be developed for the 

species. 

Sincerely, 

STAN KOTALA, M.D., 

Conservation Chair. 

83 

PENNSYLVANIA’S 154TH LEGISLATIVE DISTRICT, 

SEPTEMBER 5, 2014. 

Hon. DOC HASTINGS, Chairman, 

House Committee on Natural Resources, 

Washington, DC 20515. 

Hon. PETER DEFAZIO, Ranking Member, 

House Committee on Natural Resources, 

Washington, DC 20515. 

DEAR CHAIRMAN HASTINGS AND RANKING MEMBER DEFAZIO: 

The House Natural Resources Committee will be holding a field hearing at the 

Pennsylvania State Capitol Complex on Sept. 8 regarding the proposed listing of 

northern long-eared bats under the federal Endangered Species Act. While it appears that there will be at least one scientist present at this hearing testifying in 

support of the protection of the species, I am concerned that the other witnesses will 

not provide an accurate portrayal of how Pennsylvanians feel about the protection 

of our natural heritage, both inside Pennsylvania and across the United States. As 

a member of the Pennsylvania General Assembly, I am writing to you today requesting that this letter become part of the official record of this hearing. 

Pennsylvania has a proud and long tradition of protecting endangered species. In 

1982 Pennsylvania passed the Wild Resources Conservation Act—our own statelevel endangered species legislation—setting up a system of legal protections for 

rare and endangered species within Pennsylvania. This law protects species that are 

rare and declining in Pennsylvania even if those species are common elsewhere. 

Currently more than 75 animals and 600 plants are protected under Pennsylvania 

law, as well as 15 species within Pennsylvania that are protected by the 

Endangered Species Act. 

The strength of both our Pennsylvania law and the federal Endangered Species 

Act has come from their requirements that decisions on whether to protect a species 

is based solely upon the best available science. Whether or not a species is in fact 

endangered is a purely scientific question—and it has been the judgment of both 

the people of Pennsylvania and the nation that when a species is endangered, we 

have a moral obligation to prevent its extinction. But once a species is protected, 

there are alternatives and options regarding how to conserve those species in ways 

that minimize the economic impacts that the conservation activities have on our 

local and regional economies. In fact, both Pennsylvania law and the Endangered 

Species Act contain numerous provisions that provide flexibility and options to private parties to minimize any burdens that they may experience in helping to conserve our natural heritage. 

In the past two years, Pennsylvania’s Wild Resources Conservation Act has come 

under heavy attack. House Bill 1576, introduced by Rep. Jeff Pyle, sought to gut 

the Act by ending protections for species already protected under Pennsylvania law, 

turning over listing authority to the Independent Regulatory Review Commission, 

and requiring that all information on endangered species be placed in a centralized 

database that disclosed geographic information on species’ locations. This bill is unnecessary and, if passed, would pose a tremendous threat to Pennsylvania’s natural 

heritage. The U.S. Fish and Wildlife Service was so concerned about the passage 

of this bill that it wrote a letter on Aug. 9, 2013 indicating that passage of this legislation would jeopardize Pennsylvania’s Pittman-Robertson Wildlife Restoration 

funding. 

Industry special interests may believe that H.B. 1576 would benefit them by reducing their environmental stewardship responsibilities. However, reducing protections for endangered species is not a core value of Pennsylvanians, who understand 

that protecting imperiled plants and animals and the habitats we share with them 

is key not only to preserving the long-term health of the environment, but also to 

protecting the nation’s long-term economic security. 

I am concerned that Monday’s hearing on the northern long-eared bat furthers the 

false dichotomy imbedded in H.B. 1576 that protecting endangered species comes at 

84 

an unbearable economic price for our state and our nation. The reality is that 

Pennsylvania has a long track record of helping to prevent the extinction of the 

Indiana bat, which has been protected under the Endangered Species Act since 

1967. There is simply no factual reason to believe that protecting the northern longeared bat under the Endangered Species Act will be any different from protecting 

the Indiana bat. If the best available scientific information from our nation’s top 

wildlife experts indicates that the bat should be protected, then we should all support that decision and move forward together in a constructive fashion to recover 

this species to the best of our collective ability. 

Sincerely, 

STEVE MCCARTER, 

State Representative. 

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