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April 3, 2023

USFWS Final Rule Goes Into Effect: NLEB Officially Endangered Species

The northern long-eared bat (NLEB) is now officially an endangered species under the Endangered Species Act. The final rule from the US Fish and Wildlife Service (USFWS) uplisting the NLEB, which we previously summarized, went into effect on March 31, 2023. The uplisting of the NLEB from threatened to endangered has raised concerns in the regulated community regarding how to determine whether a project that could impact bat habitat (i.e., tree clearing) or could have operational impacts (i.e., wind energy facilities) will require an incidental take permit. Project proponents previously relied on a NLEB “4(d) rule,” which gave projects a clearly defined safe harbor as long as they avoided hibernacula or occupied roosting habits. Now project proponents must evaluate their projects without the 4(d) rule and the certainty it provided that projects would not result in a “take” in violation of federal law.  

In anticipation of these concerns by project proponents, the USFWS has provided a Rangewide Determination Key as well as several interim guidance documents to help project proponents assess the potential impacts of their projects and the need for additional agency consultation and permitting.

The USFWS’ Interim Voluntary Guidance for Northern Long-Eared Bat: Forest Habitat Modification applies to projects that do not require federal permits. Even projects without a federal nexus must comply with the Endangered Species Act and are subject to enforcement and penalties if they cause a “take” of a protected species without a permit. The guidance states that a self-evaluation of a project should consider whether it involves a significant modification of habitat and, if so, whether that modification will harm the NLEB. This evaluation requires determining whether bats are present through surveys or the Rangewide Determination Key and then taking steps to avoid or minimize impacts if bats are known or assumed to be present. The USFWS states that measures like those included in the former 4(d) rule may be enough to avoid a take if bats are present, but the agency cannot offer the same level of comfort to project proponents as before that a prohibited take will not occur.

The USFWS also issued separate interim guidance and a frequently asked questions supplement for land-based wind energy facilities. The guidance includes a list of criteria and avoidance measures that a wind project must meet for the USFWS to determine that an incidental take is not reasonably certain to occur. The guidance includes buffers around suitable roosting habitat and known summer roosts and hibernacula, pre-construction surveys, feathering of turbines, and periodic post-construction monitoring.

The USFWS’ new online tools and guidance provide project proponents with resources for evaluating their projects. However, the effectiveness of these resources and how much comfort they can actually provide to project proponents remains to be seen.

If you have 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.
 

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