Biodiversity degradation is an existential crisis affecting planetary and human health. Since the enactment of the federal Endangered Species Act in 1973, populations of mammals, birds, amphibians, and fish have dropped a shocking 68%.

As scientists and policymakers grapple with addressing the rapid and widespread decline in species, states like Maryland are exploring regulatory strategies that extend beyond traditional frameworks such as the federal ESA. One such initiative is embodied in Senate Bill 946, passed in the 2025 Maryland General Assembly session and now chaptered under the title “Endangered and Threatened Species – Incidental Taking – Bats.”

This new law marks a significant expansion of one state’s regulation of species protection and introduces a new permitting process that will substantially affect landowners, utility companies, and small businesses operating in Maryland. While initially sponsored by an Eastern Shore lawmaker who described encouraging the forestry industry, the bill’s implementation raises real questions about the efficacy of this government action and its negative economic impact.

Bats make up roughly one fourth of all mammal species, but are any of them going to be saved from human activity by this new law that will be expensive for businesses across Maryland to comply with?

A New Framework for Bat Conservation

Senate Bill 946 authorizes the Maryland Secretary of Natural Resources to issue a permit for the “incidental taking” (.. the unintentional or accidental harming of a protected species) of four species of bats:

• the Indiana bat,
• the eastern small footed bat,
• the northern long eared bat, and
• the tricolored bat

.. provided that applicants submit a detailed conservation plan and meet stringent criteria. This is a notable policy development: While incidental take permits exist under the federal ESA, Maryland’s Nongame and Endangered Species Conservation Act has previously not authorized these state level permits. The state is now asserting its independent authority to regulate even those species not federally protected, like the eastern small footed bat (after the U.S. Fish and Wildlife Service “found that listing was not warranted” because the culprit in its decline was not humans but a fungus), further expanding the state’s conservation reach.

The same is the situation with the tricolored bat that was proposed for listing by the Biden Administration, but is not currently federally listed as endangered.

While much is known about the federally listed bats, the same cannot be said for the two now Maryland only protected bats, state approved conservation plans must detail:

• Expected impacts from the activity;
• Measures to minimize and mitigate those impacts;
• Financial resources to carry out the plan;
• Alternatives considered; and
• Any other measures deemed necessary by the Secretary.

Moreover, the Secretary must affirm that each proposed incidental taking:

• Will not appreciably reduce the survival of the species;
• Will be minimized to the extent practicable;
• Is supported by adequate funding and implementation commitments; and
• Complies with applicable federal authorizations.

What Bats Are We Talking About?

Maryland is home to 10 bat species, most tree bats and some cave bats. These include migratory species as well as hibernating species that dwell in tree cavities, attics, and even building structures. Bats provide immense ecological benefits, including insect control, pollination, and seed dispersal.

Economic and Regulatory Implications

The Maryland Department of Natural Resources acknowledges that Senate Bill 946 “may have a material impact on small businesses.” Companies, and not just those in construction, energy, agriculture, and forestry, will find themselves subject to new permitting obligations, seasonal activity restrictions, and conservation compliance obligations (i.e., preparing a conservation plan and pursuing state permitting approval) if their operations occur in bat sensitive areas.

Prior to this law, businesses working within the framework of the ESA often managed compliance through federal incidental take permits. Now, Maryland businesses must also navigate a yet to be announced state level conservation permitting regime, potentially duplicating regulatory efforts or facing stricter localized requirements. Importantly, the bill gives the Secretary broad discretion to adopt regulations, meaning more detailed submittals and possibly onerous rules may be forthcoming, but significantly, the state does not have personnel or a budget for this entirely new program?

This has prompted concerns from affected businesses. From time of year work restrictions on tree felling to limitations on land disturbance near roosting sites, the costs and delays associated with bat protections will mount making doing business in Maryland more expensive. For many small businesses, particularly in rural or exurban areas, this may result in burdens disproportionate to their role in the broader biodiversity issue.

Is This the Right Approach to Biodiversity Loss?

There is no question that biodiversity loss is real and consequential. Maybe a million species are at risk of extinction, many within decades. The loss of biodiversity not only affects ecosystems but has direct human consequences, undermining food security, increasing zoonotic disease risk, etc.

That observed, whether Maryland’s expanded bat regulation represents an efficacious response is an open question. Critics argue that the permitting regime will create bureaucratic friction without clearly measurable conservation gains. There is little evidence that incidental take permitting, particularly when implemented at the state level without robust enforcement and funding, meaningfully alters the trajectory of species recovery.

Additionally, the problem is not the killing of bats by humans. The Boogeyman is White nose syndrome, a deadly fungal disease that has caused 90 to 100 percent declines in tri colored bat colonies in Maryland. This new law does nothing to address that, so ..

Moreover, layering additional state level requirements on top of existing federal processes may not address the underlying drivers of biodiversity loss, namely habitat fragmentation, climate change, and invasive species.

What Should Maryland Businesses Do Now?

We have assisted clients in navigating federal bat related regulatory requirements, including the preparation of habitat conservation plans and negotiation with U.S. Fish & Wildlife Service officials. Now, with Senate Bill 946, the same type of work will be needed for state authorization in Maryland.

Businesses should consider:

• Conducting early habitat assessments if operating in areas with known bat activity;
• Developing internal compliance protocols to track time-of-year restrictions;
• Monitoring forthcoming regulations from DNR; and
• Budgeting for conservation plan preparation and potential project delays.

With more bat species under Maryland’s regulatory umbrella, proactive engagement is not only a legal necessity, it may also protect businesses from unforeseen enforcement and reputational risks.

Conclusion

Maryland’s Senate Bill 946 represents a bold step into an increasingly complex realm of environmental regulation. While bats are undeniably important to the health of ecosystems and worthy of protection, the bill’s real world effectiveness in slowing biodiversity loss is questionable at best. This new law does nothing to address White nose syndrome responsible for more than 90 percent of the bat decline.

What is certain is that businesses need to be prepared for the operational and compliance burdens this law introduces.

If your business could be affected by bat conservation measures, federal or state, we can assist in assessing impacts, designing mitigation strategies, and navigating the new permitting landscape in Maryland. As state biodiversity law continues to evolve beyond the longstanding federal framework, effective legal counsel will be critical to balancing business operations with environmental compliance.