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Bee ‘Endangered’ Listing Could Sting Energy Interests, Lawyers Say

The U.S. Fish and Wildlife Service (FWS) is proposing to list the rusty patched bumble bee (Bombus affinis) -- which occurs in the eastern and Midwestern United States, as well as Ontario, Canada -- as an endangered species. Such a move would have implications for developers of energy infrastructure, according to observers.

The rusty patched could have the distinction of being the first bee species listed as "endangered" under the federal Endangered Species Act (ESA). "The listing could have significant implications for developers of both energy and real estate projects as well as those in other industries," law firm Locke Lord's energy practice lawyers said in a note.

The notice of potential listing was made Sept. 22 in the Federal Register, starting the clock on a 60-day comment period, which ends Nov. 21.

"Since the late 1990s, rusty patched bumble bee abundance and distribution has declined significantly," FWS said in its notice. "The number of populations has declined by 91%...from 845 historically...to 69 currently...Many of the current populations, however, have not been reconfirmed since the early 2000s and may no longer persist. For example, no rusty patched bumble bees were observed at any of the historical sites that were revisited in 2015."

Decline of the species has been attributed to a number of factors, including pathogens, pesticides and habitat loss/degradation.

"...[E]ven though development and habitat loss are not identified as the principal reason for the declining status of the rusty patched bumble bee, if the listing is finalized, many activities associated with the development, operation and maintenance of energy, industrial and real estate projects could be at risk of causing a 'take' [harm to the species] and violating the ESA if those activities take place in or near occupied rusty patched bumble bee habitat," Locke Lord said.

"Even though its range has been drastically reduced over the last 20 years, because the rusty patched bumble bee is known to occur in 12 states, a decision by the Service to list the species would have significant implications for a broad range of industries. Industries as diverse as timber harvesting, wind energy development, and oil and gas exploration (including fracking), and linear energy and infrastructure projects such as pipelines, transmission lines and highways, are all likely to be impacted."

The law firm recommended that companies potentially affected by a listing of the bee file comments with FWS.

"In addition to the effect of a federal listing, many states have their own endangered species statutes that prohibit the unauthorized take of state-listed species, and many of those state statutes have provisions providing for the automatic listing of any species that is federally listed. Therefore, if the Service finalizes its proposal to list the rusty patched bumble bee as endangered under the ESA, it could trigger additional obligations for projects at the state level under relevant state laws."

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