On March 31, 2023, a final rule reclassifying the northern long-eared bat (“NLEB”) from “threatened” to “endangered” under the US Endangered Species Act (“ESA”) goes into effect. Once effective, the NLEB reclassification may impact industry and other stakeholders engaged in large construction projects and other development across the 37-state NLEB range shown in the figure below, especially projects that require tree removal.
See 2022-25998.pdf (govinfo.gov)
Background on NLEB
In 2016, the US Fish and Wildlife Service (“USFWS”) listed the NLEB as threatened under the ESA. In doing so, USFWS concluded that the disease white-nose syndrome was an overwhelming threat to the NLEB and that an endangered listing’s blanket prohibitions on all forms of take (defined in the ESA as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct”) across the NLEB’s expansive range would not slow the disease’s spread or impact nor would it benefit the NLEB at its then-current population levels. Instead, USFWS put in place a focused solution through an ESA Section 4(d) Rule (“NLEB 4(d) Rule”). Specifically, the NLEB 4(d) Rule identified the following prohibited activities:
- Take of NLEBs in a known hibernaculum by disturbing or disrupting hibernating individual NLEBs when they are present;
- Take of NLEBs by altering a known hibernaculum entrance or interior environment when individual NLEBs are not present if the result of the activity will impair essential behavior patterns; and
- Tree removal within 0.25 miles of a known hibernaculum.
When USFWS reviews a proposed action for potential impacts to the NLEB, its typical practice has been to ensure that the project would not include these activities prohibited by the NLEB 4(d) Rule.
In January 2020, a federal judge held that USFWS’s threatened listing did not adequately protect the NLEB under the ESA. Citing the best available science, the judge agreed with the challengers that the NLEB instead should be listed as endangered. USFWS was given until November 2022 to either support, with the best available science, that the NLEB should remain threatened with the NLEB 4(d) Rule; delist the species altogether; or reclassify the species as endangered.
In response to the judge’s decision, USFWS found that other stressors are affecting the NLEB, including wind energy mortality, effects from climate change, and habitat loss. The combination of these stressors led USFWS to determine that the NLEB should be reclassified as endangered under the ESA.
On November 30, 2022, USFWS published a final rule reclassifying the NLEB. Though the new NLEB rule was set to become effective on January 30, 2023, on January 25, 2023, the USFWS announced that it is delaying the effective date of the final rule by 60 days—from January 30, 2023, to March 31, 2023. USFWS reasoned that the extension is necessary to allow it time to finalize conservation tools and guidance to avoid confusion and disruption for industry, landowners, and federal agency partners.
New NLEB Rule
Once the new NLEB rule goes into effect, the NLEB will be listed as endangered under the ESA, the NLEB 4(d) Rule will no longer apply, and the NLEB will be entitled to a full “take” prohibition under Section 9 of the ESA. As a result, developers of projects that are located within the NLEB broad range and involve potential impacts to its habitat—for example, large wind projects that involve tree removal—will need to be mindful that they may need to undertake additional actions and incur additional costs to ensure compliance with the ESA.
Projects That Require Any Federal Permit or Federal Funding
In general, if a project requires any federal permit or federal funding, Section 7 of the ESA requires federal agencies to consult with USFWS to ensure that the permitted actions will not jeopardize listed species, including the NLEB. When the new NLEB rule is in effect, if there is potential take of the NLEB, USFWS will require the developer to apply for an incidental take permit.
Projects That Would Not Have Required a Federal Permit or Federal Funding
Even if no federal permit or federal funding is required for the project, Section 9 of the ESA prohibits take of any endangered species. If a project is likely to result in take of the NLEB, the developer will be required to work with USFWS to obtain an incidental take permit and an approved habitat conservation plan prior to engaging in the project activities that would result in such take of NLEB.
Understanding that the NLEB reclassification has the potential to greatly impact project development, USFWS is developing tools to help industry comply with the new NLEB rule. USFWS indicated that it will replace the NLEB 4(d) Rule with a “determination key” to allow developers to receive automatic verification of compliance for some projects. USFWS is also developing an “Interim Consultation Framework” to help facilitate the transition from the ESA Section 4(d) process to the ESA Section 7 consultation process. USFWS is also trying to identify the “maximum extent practicable” activities that will or will not result in an ESA violation under the new NLEB rule. For example, an activity may be deemed unlikely to result in a violation of the new NLEB rule if it involves an insignificant amount of tree removal during the NLEB hibernation period.
Developers of new projects or projects that will not be completed by the new NLEB rule effective date will need to be mindful as to whether the projects fall within the NLEB range and may impact the species. To assist with this analysis, developers should utilize the USFWS tools.