Volume 25, Number 2  ●  February 6, 2017

"Bee" Alert! Rusty Patched Bumble Bee Listed as Endangered

On January 10, 2017, the U.S. Fish and Wildlife Service (USFWS) issued their Final Rule listing the rusty patched bumble bee (Bombus affinis) as endangered.  This listing could affect some projects and activities in Virginia and Maryland on sites near known populations of the bumble bee.  Note that all landowners are expected to comply with the Endangered Species Act, regardless of whether or not they are conducting an activity that requires a federal action (such as a wetlands permit).  This listing is effective as of March 21, 2017¹.  At this time, the listing has not officially been delayed by the Regulatory Freeze Pending Review.

Background

Formerly a wide-spread species throughout much of the eastern and mid-western portions of North America, the rusty patched bumble bee has seen significant declines in population sizes in the past 20 years.  Bees assist in the pollination of agricultural crops and thus play an important role in our food chain.  USFWS attributes the declines to habitat loss and degradation, pathogens, pesticides, and the effects of small population dynamics.  As recently as the 1990’s the rusty patched bumble bee was present in 31 states and provinces in the U.S. and Canada, but since 2000 the species has only been reported in 14 states/provinces with dramatically reduced occurrences in these remaining areas.  In Virginia, this species is now only known from Fauquier, Page, Madison, and Rockingham Counties, and in Maryland it is only known from Anne Arundel County.  This final rule lists the rusty patched bumble bee as endangered throughout its range and cites a number of activities that may potentially result in a violation of the Endangered Species Act because they could result in Take¹ of the species. 

How the listing may affect your project

Now that the rusty patched bumble bee has been listed under the Endangered Species Act, it is afforded certain protections.  Any action where the species may be “taken” is prohibited without permits for Purposeful or Incidental Take.  The USFWS final rule notes the following activities may result in Take (though the potential for Take is not just limited to this list):

1. Unauthorized handling or collecting of the species;
    
2. The unauthorized release of biological control agents that attack any life stage of the rusty patched bumble bee, including the unauthorized use of herbicides, pesticides, or other chemicals in habitats where the rusty patched bumble bee is known to occur; 
    
3. Unauthorized release of non-native species that carry pathogens, diseases, or fungi that are known or suspected to adversely affect rusty patched bumble bee where the species is known to occur;
    
4. Unauthorized modification [including mowing], removal, or destruction of the habitat (including vegetation and soils) in which the rusty patched bumble bee is known to occur; and
    
5. Unauthorized discharge of chemicals or fill material into any wetlands in which the rusty patched bumble bee is known to occur.

Our public and private-sector developer clients should particularly note activities 4 and 5, and our utility clients should additionally note activity 2 from this list.  All projects and activities must maintain compliance with the Endangered Species Act.  If your project or activity requires a federal action (such as a wetland permit, floodplain compliance determination, FERC permit, etc.), and there is a known occurrence of the rusty patched bumble bee you may be restricted from performing certain management practices or from altering habitat (potentially stopping some projects altogether).  This may also have an impact on certain utility rights of way that must be maintained in accordance with FERC Electric Reliability Standard FAC-003-2.  Given the now limited extent of the occurrences of the rusty patched bumble bee, we expect that the effects of this listing will be limited, but prefer all our clients be aware of this issue, as USFWS has received petitions to list other bee species in recent years.

If your project/activity is affected by the rusty patched bumble bee, USFWS notes that maintaining habitat and planting native species (which can be integrated with your project’s landscaping plan) may be acceptable practices to keep projects moving forward.  For our utility clients that maintain rights of way within the area of known rusty patched bumble bee occurrences, it may be necessary to alter maintenance practices including conducting mowing and spraying at specific times of year where they would not affect the rusty patched bumble bee.

For our Virginia clients, please note that the Virginia USFWS office is also recommending that projects located in the historic range of the rusty patched bumble bee should consider carrying out the following voluntary conservation measures:

• Avoid pesticide use.
• Avoid herbicide use.
• Plant native flowers to support pollinator habitat.
• Conduct rusty patched bumble bee surveys prior to project implementation.

The Virginia USFWS office lists the following Counties and Cities as part of the historic range of the rusty patched bumble bee: Alleghany, Carroll, Chesterfield, Fairfax, Frederick, Giles, Grayson, Madison, Nelson, Northumberland, Prince William, Pulaski, Rappahannock, Rockbridge, Arlington, Falls Church, Galax City, Radford City, Winchester, and Norfolk.

Additional answers to questions regarding the listing may be found in the USFWS FAQ Sheet.

WSSI Capabilities

As always, WSSI stands ready to guide our clients through the maze of regulations, whether it be coordination of your project with USFWS or preparing requests for Take permits.  Additionally, our parent company maintains the Davey Institute which has experts ready to share advice on native pollinator gardens and responsible pesticide use to help you determine how to keep your projects and activities on track while protecting the rusty patched bumble bee.

Please contact Ben Rosner, Mike Klebasko, or Mark Headly with any questions you have about this listing.

1. The USFWS delayed the effective date from February 10 to March 21.

Check out past issues in the Field Notes Archive.

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