The US Fish and Wildlife Service (USFWS) has delayed the uplisting of the northern long-eared bat (NLEB) from threatened to endangered under the Endangered Species Act (ESA). In a January 26, 2023, Federal Register publication, the USFWS delayed the effective date of its final NLEB rule from January 30, 2023, to March 31, 2023. The USFWS indicated that it is postponing the effective date while it develops conservation tools and guidance documents to assist project developers with the consultation process.
Based on the figures provided by the USFWS, the delay is necessary and reveals the significant impact of the rule. By reclassifying the NLEB from threatened to endangered, the USFWS eliminated the 4(d) rule that gave project developers a clearly defined safe harbor as long as a project avoided hibernacula or occupied roosting habitats. According to the USFWS, at least some of the 24,480 projects that completed consultation in the past three years have not been completed and relied on the 4(d) rule that will be eliminated when the final rule takes effect. The agency has already identified 3,095 projects that will require an Incidental Take Statement due to likely impacts on the NLEB and the repeal of the 4(d) rule.
Without guidance and conservation tools to clarify and streamline the consultation process, new projects and many of the current projects that previously completed consultation under the 4(d) rule would come to an immediate halt. Projects that do not require consultation through a federal permit process are also left without clarity to assess the risk of impacts to the NLEB. The extra time will allow the USFWS to develop the necessary guidance and tools. According to the USFWS, this will include an “online determination key” to streamline consultation with automatic project concurrence for some projects, as well as guidance for wind facilities and private activities that cause habitat modification. Time will tell if these tools speed up the process for projects that are not likely to impact the NLEB. For now, however, it appears developers have a reprieve and can continue to utilize the tried and true 4(d) rule.
If you have any questions regarding the content of this alert, please contact Tom Paul, counsel, at tpaul@barclaydamon.com, or another member of the firm’s Environmental Practice Area.