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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

April 7, 2022

Increased Protections for Northern Long-Eared Bat Could Endanger Development Projects

On March 22, 2022, the United States Fish and Wildlife Service (USFWS) proposed to reclassify the northern long-eared bat (NLEB) from threatened to endangered under the Endangered Species Act (ESA). The proposal follows a 2020 US District Court for the District of Columbia ruling remanding the agency’s decision to list the NLEB as threatened for failing to fully evaluate impacts to the species. 

The NLEB’s decline can be almost entirely attributed to white-nose syndrome, a fungal infection that causes illness and death of infected individuals. The USFWS found that white-nose syndrome is expected to affect 100 percent of the NLEB’s US range—an area encompassing 37 states in the eastern and north central United States and the District of Columbia—by 2025. Where present, white-nose syndrome has caused estimated declines of 97 to 100 percent of affected NLEB populations. Human-related causes of the NLEB’s population decline pale in comparison. 

Yet, the impacts of the reclassification will fall on development projects, particularly wind energy projects and those involving tree clearing, and make it harder for those projects to clear an ESA review. Under the current 2016 threatened listing, projects in the bat’s range can qualify for an exemption from the ESA’s take prohibition by complying with the NLEB Section 4(d) rule, which establishes certain area and timing restrictions for tree clearing. Compliance with the Section 4(d) rule gives projects a safe harbor to proceed without an incidental take permit or risk of an enforcement action. If the endangered listing is finalized, the Section 4(d) rule will not be applicable. As a result, projects that involve potential impacts to NLEB habitats (e.g., tree clearing) will either be forced to conduct surveys to show that the NLEB is not present or presume that the NLEB is present, apply for an incidental take permit, and develop a habitat conservation plan. At this time, there is no clear guidance for designing and performing surveys that would be acceptable as proof of absence. The result of either option will be additional time and costs for project developers. 

The USFWS has reassured the regulated community that projects will still be permitted and those that are already permitted will still be able to go forward. In the announcement, the USFWS indicated that existing projects with ESA compliance in place or completed by the end of 2022 would not be impacted by the NLEB reclassification. Thereafter, project developers will have an additional hurdle to overcome. 

The USFWS will accept comments received or postmarked on or before May 23, 2022, via US mail to:
    Public Comments Processing
    Attn: FWS-R3-ES-2021-0140
    US Fish and Wildlife Service
    MS: PRB/3W
    5275 Leesburg Pike
    Falls Church, VA 2204103803

Comments submitted electronically via the Federal eRulemaking Portal (using docket number FWS-R3-ES-2021-0140) must be received by 11:59 p.m. eastern time on May 23, 2022. 

If you have any questions regarding the content of this alert, please contact Emma Marshall, associate, at emarshall@barclaydamon.com; Tom Paul, counsel, at tpaul@barclaydamon.com; or another member of the firm’s Regulatory or Environmental Practice Areas or Energy Team. 

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